Monday, November 26, 2007


The NY Times reported Sunday HERE

Jeffrey Deskovic: wrongfully convicted of murder at age 17, he was freed after spending 16 years in prison on the basis of DNA evidence which served to support his contention that the detectives coerced his confession. At age 34, having lost half of his life in prison for a crime he did not commit, the Times details the everyday travails of a man who is doing things like swimming and opening a window for the first time in 16 years.

We’ve been though this familiar route so many times,
it’s time to start asking some different questions:

It is now accepted fact that eyewitness identifications are often inherently unreliable. However, most prosecutors will tell you that a good eyewitness identification is the strongest evidence they have. If you have read
The Seven Sins Of Memory you know the reasons why eyewitness identifications are unreliable. That being said, what do we do? We can start by changing the jury instructions to deal with situations in which there is only an eyewitness identification without any supporting evidence. Something along the lines of the jury instruction on a defendant’s statement- that “the jury should treat an eyewitness identification without supporting evidence with extreme caution.”

Judges and prosecutors need training (note we didn’t write “better training” because we don’t believe that most judges or prosecutors have any clue as to how unreliable an eyewitness identification really is. Before they can have better training, they need some training first.) on eyewitness identification.

Next up are confessions. Florida needs to pass a law requiring the police to videotape confessions. The fact is that innocent people confess. Just ask Jeffrey Deskovic.

The changes in the way conflict attorneys are compensated in Florida is a recipe for disaster. Instead of getting better trained lawyers, defendants charged with the most serious of crimes will have poorly trained and underpaid attorneys handling their cases. If we’re lucky there will be one Jeffrey Deskovic a year in Florida. More likely, there will be one a month.

Yes, we have an adversarial jury system. But we must recognize that mistakes will happen. When Jeffrey Deskovic was sentenced, he told the judge he was innocent. The judge responded “that may be so, but the jury has spoken.” Off went Deskovic to spend half his life in prison for a crime he didn’t commit.

Anyone who abandons their common sense on the altar of “the jury has spoken” deserves to be removed from working in the criminal justice system. These are peoples lives we are dealing with. Surgeons in a hospital have a weekly conference in which they have to account to their colleagues for any mistake that occurs during an operation. The legal system has nothing remotely similar. When mistakes are made, we shrug, say “sorry”, give the poor soul a few hundred thousand dollars and send them on their way.

It’s time to change the paradigm.

And finally, we must do away with the trial tax. If we believe in a system that guarantees a trial by jury, it is time for prosecutors to stop whispering to defense attorneys “This judge will max your guy out if you lose.” A judge needs to take the excessive punishment out of the equation and sentence a defendant with reason and responsibility. The BS that the judge increased the sentence after the plea offer because s/he learned more about he case after the trial is just that: bull shit. It is a fiction and we all know it and it is time we speak up about it. If you try a case and if you lose, and if the sentence ends up being something like 5 or ten times the plea offer, it is time to put the facts on the record, accuse the judge and prosecutor of vindictiveness, and preserve the issue for appeal.

There are judges sitting in our Miami courthouse today who have been reversed for vindictiveness for giving – and we are now speaking about one particular instance- a defendant 99 years after a PVH in which the defendant turned down a plea offer of a guideline sentence of 57 months. This kind of crap has to stop, and Judges who do this need to suffer some type of ramification. This judge in question suffered nothing more than the embarrassment of the Third DCA’s opinion. Something more should have happened to a judge who so cavalierly tossed a man’s life away for no good reason. Perhaps they shouldn't be a judge, or shouldn't be in criminal court.

The legal system thrives on suing doctors who make mistakes, and yet does very little to lawyers and judges who make similar mistakes. When a doctor screws up, the patient dies. When a Judge mistakenly and vindictively sentences an innocent man to life in prison, the man dies a little bit every day. We'd take the former over the latter without any hesitation.

See You In Court.


Anonymous said...

I miss Sy.

Let Freedom Ringggggg.... said...

1. what is the law in florida regards old dna being tested that shows innocent?

2. do you need court approval to test old dna?

3. how many jurisdictions will not , flat out will not allow testing of old dna when technology did not exist 20 yrs ago?

4. how long does it take for a inmate to be taken serious about his claim of innocence and decide to test old dna to prove inmate is telling the truth? what is the waiting time for these innocent people to show that they are telling the truth?

5. we should first get the innocent out of jail and then with the statistics use that to shove rumpoles view down the throat of the legislature.

its disgusting that anyone innocent of a crime is in jail 16yrs. what is wrong with america that when just one innocent man is wronged as he was that we dont stop the press and demand all old dna available be tested within one years time and put to bed the thought that innocent people may be in jail.

we spend billions to jail them we should spend billions to prove they are truly guilty based on new technology that was not available 20 yrs ago.

let the guilty rot in jail and set free the innocent now.

Japan Jail is Roomey... said...

Can anyone see the Dade County Jail looking like this?


We are the experts... said...

You just can't make this shit up!

"When Broward Circuit Judge Cheryl Aleman goes before a judicial oversight agency on charges of being ''arrogant, discourteous and impatient'' to lawyers in her courtroom, about a half-dozen judges will testify as witnesses -- mostly for the defense.

Leading Aleman's witness list is Chief Judge Victor Tobin. Tobin and fellow criminal court Judge Ilona Holmes will testify as experts on contempt of court issues during the administrative proceedings, court papers say...."

Wow you guys thought that Broward Judges needed sensitivety training "NOT" because Chief Judge Tobin is (according to Aleman's witness list) a qualified "certified" expert witness for Judge Aleman as to why being "arrogant" and "rude" is just fine. (not sure if the expertise includes being a complete ass towards Dade lawyers).

Anonymous said...

Im confused Captain. Great job giving us the background, but there is something I dont understand

Migna is a Public Defender and spent how much on her campaign? $175k and she lost a County Court seat to Shelley Purple Ties Schwartz and now she is running unoppsed for Circuit Court.

I dont get it?

Anonymous said...

Rump, I think you're right about the limited value of eyewitness testimony, and I can tell you that I and many other ASAs rarely file cases that have no evidence other than one witness identifying a suspect s/he has never before seen other than perhaps at the time of the crime.

However, I think you're dead wrong about what you call the "trial tax." (Tell me, were you inspired by the republicans' rebranding of the estate tax as the death tax?) Plea bargaining exists for one purpose, and for one purpose only: to promote efficiency in the criminal justice system. When I offer a plea on a case, I'm not offering you what I really think the case is worth, i.e., how long your client should really spend in jail. Instead, I'm offering you a discount. A discount because I have 200 other cases and I need to close some out, a discount because I'm mindful just how much Dade County juries love to acquit, a discount because I don't want to put a child victim on the stand and traumatize her all over again.

So if I offer 10 years to close a case out, your client rejects it, he comes in second after trial, and I then ask for twenty or thirty years, I'm not being vindictive, now I'm asking for what I think the case is really worth.

I see no reason why things should be any different for judges, but the appellate courts disagree, so the lesson there is for judges to stop getting involved so often in plea negotiations, or if they feel the need, insist that the defendant offer them a proposed plea that said defendant will accept, rather than the other way around.

As for taping confessions, I think that if the police started taping every interview with every suspect, there would be a lot fewer confessions, and a lot more unsolved crimes. Not because I believe that the police are making confessions up, or coercing them, but because I can't tell you the number of cases I have prosecuted where the defendant believes that it isn't a confession if it isn't on tape or in writing, so they'll sing to the detective, but the minute they are given the opportunity to memorialize the confession, they tell the detective, are you crazy, I ain't confessing to nothing! Which makes me say again, thank goodness most criminals are stupid!

old guy said...

Sure. And if you do a bad job for a criminal defendant, just turn in your Bar card, or allow him to sue you in civil court.

No one in the 'system' is perfect. Judges and prosecutors act badly. Sometimes justice is not served, or served too slowly - after the Rule 3 is granted.

We, the defense bar, are never sanctioned in any meaningful way when we screw up. Every morning, I can point out lawyers at arraignnment who are selling out their cases for probation (and a fee), long before they ever investigate the evidence or legal issues.

Bad judges - turn them in. Bad prosecutors, hand them up / or show them up. But what about us? Lots of us make a living, but really could care less about the client, except for the income. Even I have had that feeling once or twice. It is hard to ignore- as the faces change, but the cases really do not.

I do remember a proverb about who among us gets to "Cast the first stone."

Anonymous said...

1) Why do you need a jury instruction when you can state/argue the obvious about eyewitness testimony 2) Why have a mandatory law about confessions - what about the criminal who confesses in a police car? in a jail cell? Throw out that evidence? Again, you can argue the obvious about non-videotaped confessions 3) Are you sure there is a trial tax? How about considering that defense attorneys in Miami are so used to getting plea offers below what the guidelines and crimes call for, when their clients get what they have coming to them, it's labeled as vindictive. The deck is already stacked in favor of criminal defendants (as it should be) - presumption of innocence, right to remain silent, burden of proof on prosecutor, appeals galore plus postconviction motions, on top of all the discovery (and depos) available. Now go heat up some milk, put it in a bottle and go to sleep. It's past your bedtime, R.

abe laeser said...

Every wrongful conviction is a tragedy.

It is also every prosecutor's ugliest nightmare - that they were involved in convicting the innocent.

I have plenty of work trying to prove the 'guilty' should be found guilty.

Please tell the prosecutors if you think that you have an innocent client. Present your case (defense) to them.

Do not stop there. There are 3 or 4 levels of supervisors who can decide to drop charges. Demand to see Ms. Rundle. Fight the good fight with all of your wares!

No innocent person should ever be prosecuted.

Anonymous said...

The so called "trial tax" is the only way weak judges keep people from going to trial in their division. We all know the old phrase - "bang someone after trial, and next week everyone pleas."

It is the real judge who after trial where the offer was 3 years, gives the defendant probation or 364 because the case is BS. But that happens so rarely.

batman said...

Whoa, hold on a minute. I read the article too. Your anger and indignation at a man being wrongfully convicted and sentenced, as well as judges who assess a trial tax is appropriate and righteous. I agree that is why judges should not be involved in, nor know the status of, plea negotiations. Nor should judges give greater sentences than appropriate for the purpose of dissuading the next defendant from going to trial. However let's not go overboard.

Sue a judge for sentencing a defendant who has been convicted of his piers? Suing a prosecutor for doing his/her job properly and following what evidence may exist and putting that before a jury? Please note I said "doing his/her job properly", because I do believe that a prosecutor who suborned perjury or withheld evidence that leads to an improperly obtained conviction should have liability.

But we still have to depend on testimony and the fallibility of human beings. More and more crimes are committed in the presence of video cameras which make the job easier. More and more DNA evidence is obtainable and it makes the job more certain. We can not go so far as to now say without it we can not convict and punish perpetrators of crimes.

I have always understood, but thought impractical the phrase "better a hundred guilty men go free than one innocent man go to jail." If I were the innocent man I would scream that from the highest mountain, but the truth is our system makes mistakes, but even with the mistakes it is still the best system around. We must do the best we can to limit the mistakes, learn from the ones we make and do better every day, but perfection is for the gods not for man.

South Florida Lawyers said...

One quarter of all prisoners freed through DNA evidence obtained by the Innocence Project had made false confessions or incriminating statements, including false polygraph results as in Deskovic's case.

Imagine those numbers once the waterboarding/sleep deprivation starts. Real actionable intel.

Anonymous said...

Rump, I posted this article because it's very short and deals with the upcoming execution of a possibly innocent inmate who's not being allowed to do DNA testing because of procedural reasons. Feel free to edit the article and leave the link.


Court rejects Ala. death row challenge

WASHINGTON - The Supreme Court on Monday refused to allow a death row inmate to try to prove his innocence through DNA testing.

Thomas Arthur, 65, was sentenced for the 1982 killing of Troy Wicker of Muscle Shoals, Ala. His execution has been set for Dec 6, but is expected to be delayed because of a pending Supreme Court case involving lethal injections.

The victim's wife, Judy Wicker, testified at Arthur's trial that she had sex with him and paid him $10,000 to kill her husband, who was shot in the face as he lay in bed. Earlier at her own trial, Wicker testified that a man burglarizing her home raped her, knocked her unconscious and then shot her husband.

In April, Arthur's lawyers sued the state claiming that the inmate was being deprived of his rights and was entitled to DNA testing of critical pieces of physical evidence, including a rape kit, bloodstained clothing and hairs aimed at showing that someone other than Arthur committed the murder.

The 11th U.S. Circuit Court of Appeals in Atlanta affirmed a federal judge's dismissal of Arthur's lawsuit, citing the authority of federal courts to dismiss such claims that are speculative or are filed too late in proceedings.

Arthur filed his claim five days before the state of Alabama moved to set an execution date.

The case is Arthur v. King, 07-397.

Anonymous said...

Redskins safety Sean Taylor is critically injured in a shooting Monday in Miami.


Anonymous said...

Friends & Colleagues:

I hope you will join me next Wednesday for a fundraiser/happy-hour-style event in support of the reelection of Judge Leon Firtel:

Wednesday November 28
The Purdy Lounge
1811 Purdy Avenue Miami Beach (www.purdylounge.com)
5:30 to 7:30.

There will be 2-for-1 drink specials and food. We suggested a donation of $50 dollars. Of course, either more or less will be appreciated. Judge Firtel is a fair and good Judge who shows the utmost respect to all who come before him. He deserves our support. I hope to see you there.

I hope to see you Wednesday.

Anonymous said...


CAPTAIN said...


Judge JB Cohen, the "Cuban Custody Judge"....

tapped that way by the Miami Herald, ... Judge Cohen today blasted the Dept. of Children & Family Services in court.

The never ending saga continues with a five year old girl in the middle of an international custody dispute between the Miami foster family and the Cuban birth father.

Cohen, whose earlier decision finding the father a "fit parent" has been appealed to the 3rd DCA, attempted to conduct what she thought was a routine hearing today in Circuit Court.

DCF objected, claiming that Judge Cohen had no jurisdiction. Cohen responded that:

"she has the authority to hold a judicial review, because the appeals court is considering only the question of whether Izquierdo is a fit father, and because such hearings are mandatory. But she abruptly halted the proceeding anyway -- after first blasting DCF for advocating a position that could harm children later.

''This is a dangerous, dangerous precedent for dependency cases,'' Cohen said of DCF's decision to halt the judicial review.

''If you want to use this case to set precedent for other cases, you go right ahead and do it,'' Cohen said. She added: ``But I'm telling you, you've missed the forest for the trees. You and the guardian are setting a dangerous, dangerous precedent that is harmful to children.''

and the soap opera continues ....

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

Anonymous said...

JB Cohen is famous for saying too much.

We are glad she is not in criminal.

Anonymous said...

"Better that ten innocent men suffer than one guilty man escape."

- Pol Pot
Pol Pot's Little Red Book: The Sayings of Angkar.

Anonymous said...

Judge Cohen is exactly correct. She has jurisdiction concurrent with the 3rd DCA to have judicial review hearings on all children in TPR or dependency cases. The only exception is if a show cause order was issued in a writ of prohibition appeal against the Judge.

Unlike civil cases in which the trial Judge loses jurisdiction completely in Dependency Law Section 39 of the Florida Statutes Cohen can and should hold judicial review hearings in the interest of the Children. In limited circumstances she can even enter orders while the case is on appeal. I have even seen trial judges reverse themselfs while the issues is on appeal mooting the case on appeal.

Someone in Tallahassee needs to shut down the DCF bull and get with the program.

While I disagree with Cohen most of the time. On this one she is 100% correct.

Anonymous said...

our proud gator judges are beaming after the gators slaughtered[again] the semi-holes 45-12. judges blake, slom and emmas are proud of the great gatornation.

Anonymous said...

The Herald has reported that Bennett Brummer will not seek reelection next year and that Carlos Martinez has filed to run...

Anonymous said...

Just in from Oh Susannah: Brummer stepping down and Martinez filing for his seat.


Dade public defender Brummer to step down

Posted on Mon, Nov. 26,2007


Miami-Dade Public Defender Bennett Brummer announced Monday that he will retire when his current term in office ends in January 2009.

Brummer, who has been held the position since 1976, made the announcement in part to end speculation about whether he would run for re-election or not and to give ``ample notice to his employees, friends and the public.''

''It has been more than an honor and privilege to serve our clients, the defender's office and the people of this wonderfully diverse community,'' Brummer said in a prepared statement. ``It has been the realization of a dream, the highest use of my license to practice law and my life's work. I cannot imagine a more exciting, fulfilling or important opportunity for service. I welcome new leadership in the officethat has been my home for more than half my life.''

Brummer's chief assistant, Carlos Martinez, said Monday he had filed papers to succeed his boss.

A native New Yorker, Brummer attended undergraduate and law school at the University of Miami before joining the Peace Corps in 1965. He served two years in Venezuela, where he learned Spanish.

He first came to the Miami-Dade Public Defender's Office in 1971, serving as an assistant.

Anonymous said...

Ditto 3:13. JB is right on this issue. The DCA stay is limited. That court has no idea whether the child is doing well today in her placement, and has no ability to find out since it's not a trial court.

What really shocks me is that DCF is so in the tank for Joe Cubas here. Judicial reviews MUST take place at the stautorily prescribed times - for federal funding purposes, and to make sure the child is safe and properly taken care of (remember Rilya).

DCF beats judges with a stick to make sure they comply with these mandates. What's going on here?! I thought Butterworth was supposed to bring some adult supervision to the DCF mess, but he's AWOL.

The hearing today was an embarrassment to DCF.

Anonymous said...

Bennett Brummer finally decides to leave. Is he gone yet? Can we get him to leave now instead of in a year? Then Crist could pick someone to run as an incumbent.

Is anyone going to run against his annointed successor or do we suffer through more of the same in a hispanic body?

I am no Barzee fan. Somebody of real substance please step up. PLEASE!!!

Anonymous said...

Who's the judge thta gave a 99 year sentence and what's the case?

Anonymous said...

Why don't we just cut out the middlemen and release everyone the cops' arrest?