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. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Thursday, December 06, 2007

Sean taylor Lineup.

The line-up is shaping up for the Sean Taylor murder case.



The case has been assigned by the blind clerk to Judge Murphy. This couldn't be a better choice for both the Defendants and Taylor's family. Outside of the 8:00 AM soundings which the defense lawyers from Fort Myers will have a tough time making, we are confident Judge Murphy will handle this case with the experience and fairness he has always shown.

The Prosecution will be lead by Reid Rubin, one of the best trial lawyers the State Attorneys Office has. And whenever you see Reid in court, Penny Brill from the legal division cannot be far behind. Kathy Rundle has picked an experienced and talented legal team to seek justice in this matter.

The Defense attorneys are mostly unknown to us, however, Defendant Charles Wardlow is currently being represented by David Brenner, who was a Dade PD and was in private practice in Dade County for a while.

Predication: the length of time and costs of this case will eventually cause most if not all of the Defendant's to be represented by the PD and court appointed attorneys. Now the public will really see what they are getting from the conflict counsel's office for their tax dollars. And therein lies the problem- none of these defendants can expect to get an ounce of sympathy from the public in this high profile tragic murder case. And yet, as professionals, we know that for the legal system to work, these defendants need experienced attorneys. Right now the phrase "experienced attorneys" and "conflict counsel's office" do not necessarily fit in the same sentence. We shall see.

Legal issues:

The "shooter" in this case is 17 years old. As a juvenile he is not eligible for the death penalty. The remaining co-defendants are all facing first degree murder charges via the felony murder rule.

First question: under the principle of proportionality, can the prosecution seek the death penalty for defendants who were not the shooter when they are precluded from seeking the death penalty for the shooter based on the shooter's age?

Second question: is it time to do away with the felony murder rule?

England, Canada, India, and Hawaii, Kentucky and Michigan have all abolished the felony murder rule as contrary to the western legal traditions of punishing people in proportion to their criminal acts.

From the
NY Times Article on a man serving life in prison in Florida for loaning a friend a car:

“The felony-murder rule completely ignores the concept of determination of guilt on the basis of individual misconduct,” the Michigan Supreme Court wrote in 1980.

Rumpole says: The felony murder rule is an anachronistic legal concept whose time has come and gone. It is certainly a powerful tool for prosecutors. But do we really think justice is served when a person who loans a car, or a person who drives a killer to the scene is sentenced to life in prison? If the prosecution believes an individual actively participated in planning a homicide, then a conspiracy charge is appropriate. But if the evidence is not there, and if all parties agree that a co-defendant had no idea the defendant was armed and planning to commit a murder, then why should both individuals be punished with life in prison, when one individual is clearly more culpable than the other?
And don't start whining to us about the "independent act" jury instruction. In our opinion, that and 2 bucks gets you a cup of coffee at Starbucks allowing you to drown your sorrows in expensive caffeine after a guilty verdict.

As our society moves farther away from the principles of fairness and justice in sentencing, we can expect more two bit politicians trying to make a name on the backs of the accused. If the prosecutor in the NY Times article is correct when he told the jury " No car, no murder", then lets all back a provision to prosecute the car dealer who sold the car, the union workers who built the car, the bank officers who loaned the money to get the car, the engineers who designed the car, and the stockholders who financed the company to produce the car. If nothing else, it would create a lot more work for defense attorneys sitting around in December waiting for their phone to ring.

See you in court, where we have had nothing but unpleasant experiences with the independent act instruction.

40 comments:

Anonymous said...

It's Fort MYERS, Reid RUBIN, c'mon rump, typing on scotch is bad, bad I say!

Rumpole said...

yeah/so?

Anonymous said...

Memo to shooter Rivera's family: it is not a good idea when facing life in prison to have a lawyer who has been a member of the bar for less than 5 years who gives a press release admitting your guilt and asking for plea negotiations. you are better off with the dade pd.

Rumpole said...

AMEN TO THAT.

Anonymous said...

Rumpole, why didn't you post my comment wherein I identified who you are down to two possible choices? I'm smart enough not to call your name again in this message so that it will be posted.

The question you had to decide in figuring out whether to post my message was this: Do I post this message and identify my real identity to everybody on the blog or do I not post it and risk letting the writer know that she correctly identified me as determined by my refusal to post the message? It must have been a tough decision but at least now I know I was right. Good decision, Rumpole. And, oh, I just gave you a hint as to my own identity by referring to myself as "she" or is that a bluff?

Anonymous said...

and dont forget to indict the valet who pulled my car up to the garage this morning. (via the felony murder rule)

Anonymous said...

No, rump, it is not time to do away with the felony murder rule. It is time to start executing 17 year old scumbags!

"...even if we're just dancing in the dark" - great song!

Anonymous said...

Some lives are worth more prosecution effort than others. Consider. Let us begin with the proposition that all humans are equal in the eyes of God. That means that a cab driver from Haiti who lives in a 500 sf room with his wife and kids is, on a moral level,no more worthy than an NFL all star. But if they both get murdered on the same day under the same circumstances, which case do you think will get the most attention from the SAO and police? There are murders in this town every week that never get any publicity but the families suffer just the same.

Anonymous said...

Which defendant will be ably represented by Joseph George, he of regional conflict office fame?

Anonymous said...

I think Philip "Rise and Shine" is a great lawyer.

Anonymous said...

I disagree in part. True, I'd want a more experienced attorney, but suggest that sometimes the best strategy is to simply throw yourself on the mercy of the Court.

This may be such a case. You have a confession which, apparently, was freely given. You have three witnesses with every reason in the world to testify against you. You have no chance at a sympathetic jury.

So is there even a sliver of hope for a not guilty? And if there isn't a sliver of hope, isn't it a reasonble strategy to apologize, cry and beg the court for something less than the maximum given your immediate and open remorse?

Anonymous said...

I smell a change of venue motion. Hmmmm, I wonder how the folks in Tampa feel about this case.

Rumpole said...

12:11- I didn't publish your comment naming alan shuminer or phil reizenstein as runing this blog because after several dozen emails from phil reizenstein I agreed to stop publishing posts accusing him of running the blog, as he has suffered the most with the WRONG accusation. As he has frequently reminded me in emails, his picture was put on TV and he has had judges in Dade and Broward give him a hard time because of these allegations.

However, as of yesterday, when I sent your email to him for approval, his response was, and I quote "I am really tired of this and don't give a damn what you do, and you can quote me." So I have.

But really, it's quite unfair to him and I wish you would stop. As he has said in his emails to me- please identify one, and only one piece of evidence that would be relevant to even considering he runs this blog.

And since I know that no one knows who I am, I agree that there is not one shred of evidence that phil r, or shumie, or lurvey, or cobitz, or any of the other individuals should be considered likely susepcts. They have nothing to do with this, and you can quote me on that.

Anonymous said...

Just a quick question??? I thought that the death penalty wasn't possible if the accused is 16 or under? Am I wrong?

CAPTAIN said...

THE CAPTAIN REPORTS:

From the Fla. Sup. Ct. ...

Julio Gutierrez, 10892 N.W. 85th Terrace, Miami, suspended for six months and placed on probation for six months, effective immediately following a Nov. 21 court order. Additionally, Gutierrez is ordered to enter into a new rehabilitation contract with Florida Lawyers Assistance, Inc. (Admitted to practice: 1986) Gutierrez was unable to file a motion on behalf of a client because he had been suspended from practicing law but failed to inform the client and only after a grievance was filed did he refund the fee. He accepted another case while suspended and failed to inform the client and failed to respond to Bar inquiries about the case. In another case, Gutierrez failed to communicate with a client or do work on the case over a four-year period and failed to respond to Bar inquiries. (Case No. SC07-864)

Public Reprimand - with Conditions 03-16-2000 199970305

Suspended - with Conditions 08-26-2004 200270897

Suspended - with Conditions 11-21-2007 200570099

CAPTAIN OUT ....

Anonymous said...

hey look at the bright side George will be able to at least do the Estate case after the scum bags are put to death. So now that I think of it the conflict office will work out after all.

Over and out.

Anonymous said...

Bill Barzee is Rumpole!

Anonymous said...

Our candidate for Clerk of Court was spotted this morning at the Flagler Court house making copies of several Civil case files.

Captain can you get your hands on the form McGillis filled out requesting files? Tell us what he was looking at and why.

Anonymous said...

Captain,
There are 2 Julio Gutierrez's listed with the Fl Bar. Why did you bother putting this up?
Why is it relevant to the readers of this blog?
The Julio Gutierrez who you list is not the same Julio Gutierrez who has an office in Hialeah and does traffic court and some criminal defense work.
Are you going to post all disciplinary actions whithout commenting on the relevance to this blog?

Rumpole said...

Julio Gutierriez is a common name in south Florida. Under information and belief, the Julio Gutierriez suspended has not been practising law for three years as the Captain's comment indciates and is NOT the Julio Gutierriez who is in the Justice Building and handles traffic matters.

CAPTAIN said...

Rump said:

(the Julio Gutierriez suspended has not been practising law for three years as the Captain's comment indciates) ...

Correction Rumpole...

I never mentioned that this atty was a 3 year lawyer?

This Julio G has been a member of the bar since 1986. There is only one other Julio G. and he has been practicing law since 2000.

I believe that there is a Julio G. that frequents our GJB and he certainly has been around since before 2000 and it seems like he has been around for about 20 years???

Checking further, the 1986 Julio G (who is the one suspended) has a phone number of 305-325-8600 which matches up to the office address of 1351 NW 16th St. MiamiFL 33125. I believe that is where Julio had his office. I say had because the phone number is disconnected.

So, Rumpolinsky, ...

to 5:15

Mr. McGillis was pulling volumes numbers 1,2 and 3 of Menudo vs. Ruvin

to 5:00

No.

CAPTAIN OUT .....

Anonymous said...

To 3:59 Anonymous:

See Roper v. Simmons, 543 U.S. 551 (2005) Death penalty unconstitutional for anyone under 18 at the time of the crime.

Anonymous said...

even if we're just dancin in the dark

Anonymous said...

we all know, those of us who have been around for a while, who this Julio Guiterrez is, now can we all just move on?

No?

Ok, lets talk about it for another 3 days.

Anonymous said...

Acutally, rather than doing away with felony-murder, I was thinking that we could become the 19th state to have a misdemeanor-manslaughter law.

You know, all of those traffic infractions that merely result in noncriminal fatality cases... let's just make them 1st degree misdemeanors.

You're inattentive on a cell phone and plow through a school zone, doing 25 mph as you use a school kid for a speed bump?

Why not face 364 days in jail rather than some stupid license suspension and community service hours at some trauma center?

Anonymous said...

for those who dont know, wilbur smith is the roy black of the west coast.

Anonymous said...

neophyte law student asks: Please tell me rumpole: can you get felony manslaughter as a lesser of felony murder. can an armed intruder, who did not expect someone to be home who arms himself, use deadly force to defend himself against the homeowner with a machete and thus get a manslaughter or negligent homicide lesser?

Anonymous said...

to 9:20 Roy Black got great results in over 95% of the cases he was affiliated with and was feared by the sao. Wilbur Smith is not feared by the sao anywhere, is vastly overrated and lazy and unprepared. He made a fool of himself on court tv in the murder case where he defended a man who killed his wife.Please know your facts before you compare someone to roy black. this man and his son have already conceded guilt and begged for a plea offer BEFORE arraignment and I am sure that if his client did confess, there will be grounds to attack it when you have a bunch of Miami dade detectives hunting for suspects in Fort Myers. I supposed 3 of the 4 confessions were not obtained using some sort of duress, coercion, or false promises. Smith is not even the highest rated attorney in Ft Myers but he does love the camera and newspapers. Did you know he is the former mayor and that is how he gets many of his cases and that is son was arrested for armed robbery while he was mayor. check martindale hubbell, every 4 years he changes law partners because he screws everyone he works with and blames others when things go wrong. Ever heard of the late Jim Neal, Pete Ringsmuth, and Brian Boyle all had much better defense reputations and accomplishments over in Ft.Myers.

Anonymous said...

Wilbur Smith is the former mayor of Ft. Myers, and is not the roy black over there, thats peter ringsmuth.

Anonymous said...

the only time black wins a case is when his clients bribe jurors, or a marries a juror. check his recent record.there are many better trial attorneys in south florida and much cheaper.

Anonymous said...

jeff quinn is the top attorney on the west coast. bar none

BTDT said...

Roy Black is NOT feared by the SAO. Most prosecutors WANT to face top notch lawyers like him.

When I was a prosecutor, I co-prosecuted a case where he was a defense lawyer. He did a great job for his client and was a pleasure to litigate against. I'd love to have another case against him.

BTDT said...

There is nothing wrong with the felony murder rule.

BOTTOM LINE: If you involve yourself with scumbags and facilitate the commission of a crime, you assume the risk that you will be held responsible for everything that comes of it.

The prosecutors and courts have no power over anyone who doesn't give it to them. You don't like the way they operate? Don't commit crimes and stay away from assholes who do.

Anonymous said...

I thought our duty was to seek justice. There are just some laws that are wrong in the interest of justice. If you like vigalante justice then the fenony murder rule is right. It is not always possible to know what the person next to you will do. It is good for the SAO wanting snitches.

Anonymous said...

6:21 A.M.(12/7/07) hit the nail on the head. He's the best defense lawyer in swfl.

Smith botched the "millionaire rocket scientist" murder trial on Court TV.

Now he's admitted Rivera's guilt and begged for a plea deal. The client hadn't even spent 24hrs in jail. His primary concern was not causing any further pain to the victim's family. WTF? Now he's back peddling and says he will prepare for trial. There are at least 10 lawyers in Ft. Myers that would give this guy a better defense.

Smith's only in it for the attention.

BTDT said...

5:25.........really? You think it's unjust to hold someone accountable for the consequences of their criminal actions? You suggest you're a prosecutor......do you understand the felony murder rule? It sounds like you don't have a clue.

"It is not always possible to know what the person next to you will do" No kidding. That's why you shouldn't associate with criminals and facilitate their crimes. That's why you SHOULD be held accountable when things go awry. It's called assumption of risk.

Rumpole said...

btdt-I must firmly disagree. We do not have laws against associating with unpleasant or dangerous individuals. If I am meeting with a client at 6PM, and he invites me to dinner at the Forge, and while there a friend of his walks in and joins us, and then gets up and shoots the wine steward because he brought us the 04 and not the 05, under your theory I won't be drinking wine until...forever. I don't buy into a criminal justice system that punishes people for the acts of others. The Felony murder rule needs to go!

Anonymous said...

The problem with the FMR is that it does not allow for discression between action, therefore it is an unjust rule.

Anonymous said...

Perhaps it would make cosmic kharmic sense for the pro bono legal services of a certain midnight DJ to be offered to said defendants, no? Are you still around hunkster? The pole dancers want to know.

Anonymous said...

I think that it's fair to say that Fort Myers attorneys who get involved with a Miami-Dade case are in over their heads. There are many attorneys who have handled murder cases in Fort Myers, but you can count on one hand the number who are qualified to try a case like this. I think any criminal defense attorney would love to get involved for the free advertising. . .