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

Sunday, April 13, 2008

BULLIES

It has been alleged that the prosecution in the recently concluded drug trafficking case refused to make a plea offer after the defense had filed a motion to suppress. Whether or not that is true, it raises the issue of prosecutors doing this more and more. If this trend keeps happening it will not be long before the prosecution will withdraw all plea offers if the defense demands discovery.

We have raised this issue to the FACDL and received a shrug (figuratively) in reply.


Something needs to be done. Taking depositions and filing motions to suppress are the job of a defense attorney. We have seen in this County many many examples of corruption by police officers. It was not too long ago that some officers were arrested for lying in a drug case to super attorney Lynn Overman (who still remains banned from the PDs office).

And yet, this insidious policy of withdrawing plea offers after motions are filed, or depos taken, continues. It amounts to nothing more than bullying tactics (something we were accused of just last Friday evening). There is only one way to deal with a bully, and that is confront them.

We advise lawyers to make use of the record. When a prosecutor threatens your client with an enhanced plea outside of court, demand to go back into court and put it on the record that the prosecution is punishing your client for you doing your job. Confirm the threats with a letter. Publicize it on this blog. Let the prosecutors explain why they are bullying and punishing your clients for exercising their rights under the Florida and US Constitution. Eventually an appellate court will weigh in on the matter and refer the prosecutor to the Bar.

Now before we start hearing from the sex battery prosecutors, there are of course reasonable exceptions. Plea offers should be withdrawn or enhanced if the victim of a sexual assault is deposed or if a child victim is deposed. But even in those circumstances there should not be a blanket policy. All cases are different. And if attorneys work together in identifying the weak areas of cases, there should be no problem. There are cases we have handled where after diligent defense work reasonable prosecutors agreed there was ample cause to depose the complaining witness, and they did not threaten our clients if we proceeded. And there are cases we have handled where our clients were clearly trying to use us and the discovery process to demean the victim, and the prosecutors responded appropriately.

Those cases remain the exception. The main issue is what we perceive as the bullying tactics of the State Attorneys Office. It starts in County Court where the prosecutors “enhance” plea offers (read: punish defendants) for setting a case for trial. And it continues in felonies where we well know the “policy” of the chief of the narcotics division whose prosecutors who routinely threaten defendants with increased plea offers when their attorneys take depositions.

Enough is enough. We must cast the light of day on these tactics.
We would like to hear from prosecutors and defense attorneys on this issue. (You Judges stay safely out of the way on this one; you have enough on your hands with prosecutors trying to ban children from court rooms to have to deal with a complicated issue like this.)

See You In Court.

57 comments:

Anonymous said...

Here come the ASAs............

Anonymous said...

Dear Rump:
I agree with you that defendants should not be punished with enhanced penalties because defense attorneys want to engage in discovery. However, can you please let me know where in the florida constitution it states that a defendant is entitled to receive a plea offer from the state.

CAPTAIN said...

THE CAPTAIN REPORTS:

I have reported this fact once before, but since it is again an issue, relative to my recent front page post on Judge Butchko and the State, I will repost this factoid from the web site of the State Attorney's Office:

"The Miami-Dade State Attorney's Office is dedicated to providing accurate information to the public and media. If you are a member of the working media and would like an interview with the State Attorney, or you need information on a case, would like to talk to a specific assistant state attorney or are looking for an expert in a certain area of prosecution, please contact our public information officers Ed Griffith or Tere Chavez."

CAPTAIN OUT .....

Anonymous said...

I checked with the Florida Bar Ethics Hotline on this, and I was told it is a violation of the Rules of Professional Conduct to threaten Defense Counsel with no plea offer if they took discovery. The ethics rules violated are first, interfering with an adverse party’s access to evidence, and second, vis-a-vis the threat asking defense counsel to violate the rules of professional conduct by not investigating the case and intimidating defense counsel to refrain from zealously defending his client. It was pointed out that the mere threat in a violation in and of itself. I was told it was a violation for me not to bring this up to the trial judge and if indeed I felt by ability to represent my client was stymied, I had to terminate the representation. Bar counsel further offered an observation, how is this not the predicate for ineffective assistance claim by your client. I was pointed in the direction of some interesting case law, the key factor is if you on behalf of the defendant do not initiate plea negotiations, the threat rises to a constitutional violation because the SAO in using its official authority to interfere with the exercise of a right (to conduct discovery and take depositions) created by State law, thus it triggers a violation of 42 U.S.C. 1983. An observation, perhaps we need to file Bar compliant, including against the supervisors who are directing this policy. Just an idea, it would be interesting to see Paulus or any others in the SAO defend such assignee policy, when all of us who have some degree of experience know that taking deposition helps move and resolve cases. Also, just note who the judges are who permit this nonsense to occur in their divisions, perhaps we need to consider electing them back to the SAO!!!! A final though, how about we do something in these times of tight budgets, lets push all the non-state prison and misdemeanor cases to trial, it would send a message - the County jail system is about to collapse, a little more pressure and it will cause total chaos!

The power to effect change is in our hands now, if we pass up the opportunity to bring some sense of justice to the system and more important to those whose rights are at issue, we should go change professions or give up the practice of criminal law, real estate is more deserving of wimps who do nothing!

Rumpole said...

8:54- I'm pretty sure there is no such guaranteed right. However, I for one would LOVE to have a system where 95% of the cases are tried before a Jury, and where defendants could feel safe in knowing they would be sentenced fairly and not punished for going to trial. I truly believe there would be a higher percentage of acquittals than there are now, and Judges would see what we as defense counsel often see- and would sentence accordingly.

I would also LOVE to win the Florida lottery. Neither is likely to occur.

Therefore, if the state is going to offer pleas, they should not punish someone for exercising their rights that do exist under the Florida Constitution.

If we all agree that an avdersarial system of justice best produces justice, then why is the state trying to take the adversarial part out of the system? Give me a satisfactory answer to that and I will give you a prize.

Rumpole said...

8:58- would you care to contact the FACDL (Richard Hersch or Barry Wax) with this information? I know they would be helpful in putting together a presentation to our State Attorney and that might help change matters.

Just a thought.

Anonymous said...

Look the Judges send a clear message that if you know you are guilty and waste the courts time you will get the max. Problem is we have Rothenberg wannabee's who just think every grandmother in Miami charged with a crime should get the death penalty.

The State honestly needs to go after gun violence crimes. I do not own a gun but if I did and was stupid enough to get myself in trouble while having a gun on me I had better get ready for serious jail time. You want to own a gun you had better think and think again before leaving home with it on you. If it was a stolen gun just fry the bastard.

Enough already with the pretty crimes start prosecuting the gun criminals now.

Anonymous said...

Why should judge not convey their respective feelings.Remenber judge have the discretion to accept or reject pleas.Judges must be consistent and be willing to rule in a way consistent with the law and justice.Prosecutors know what they can get away with before certain judges:similarly,they realize what they cannot get away with before other judges.
We need judges with courage and fairness,knowledgeable in the law and trial tactics.

Anonymous said...

Rump:

Why should it be an exception in sex batt cases? Are you saying that someone accused, even falsely, in a sexual battery case should have less rights than someone accused in another type of case? is the trauma so much greater for a sex battery victim then for a grandmother who is robbed with a gun to her face? What if the sexual bettery deposition is necessary to show that a victim is lying or that there are major holes in the state's case. Disappointed in you RUmpole. Thought you were above playing games of political correctness...

Anonymous said...

County court is a great example of this occurring. At sounding, we are told that there will be a trial day enhancement to jail (on many, but not all, cases). And yet it is the state attorney who vehemently objects to any depositions, the judge who more often than not denies the motion, and the police force which will not speak to an atty without a subpoena. Therefore, the only way to talk to state witnesses and investigate a county case is in the hallway on the day of trial.

What may look like a great case for the state on paper may be a terrible case after speaking to the witnesses. But in order to properly investigate and advise my client, I must go in to trial day knowing of the jail enhancement.

"We who labor here seek only Truth."
Those words are losing any meaning as time goes on.

Anonymous said...

As for enhancing DUI pleas on the day of trial, I think they should make it much harsher of a plea offer if a defendant asks for a trial...We all know that 99% of the time it is a defense tactic to try to get a breakdown IF the cops show up and that they NEVER intend to go to trial. I think that if you demand a trial, you should get it or a much harder plea. You hacks are wasting tax payer money and police officer time for the risk of 50 more community service hours. What crap! Maybe some of you guys would actually have to try a case!

Anonymous said...

Are you trying to get all of the ASAs to leave the blog, Rump? I really don't know when you changed the name of the Justice Building Blog to the Justice Building Defense Blog, but I, for one, am really tired of the SAO and ASAs being egged on by you and your brethren based upon half truths, suppositions (and you're supposed to be the sentry between the accused and the accusers, yet you don't even give the benefit of the doubt before you start accusing and convicting) and outright lies that you post (like the "facts" of the oxycodone case in your last thread that turned out to be nothing more than a bunch of crap). If you want us to not feel welcome to blog, you're doing a pretty good job of it. Hah--what if the defense gave a blog and there was nobody to respond to the attacks? You'd just be mentally masturbating with yourselves. Go ahead, have a ball. I think all ASAs should just give you what you want--a moratorium on this blog.

Anonymous said...

Again the hysteria, Rump. The prosecutor in question didn't try to "ban" a child from the courtroom, as your post reads. The prosecutor in question merely asked the judge that the child not sit immediately behind the defendant, thereby giving the impression that the defendant had a young child, and perhaps evoking the sympathy of the jurors hearing the case.

You've lost all credibility over the past week. As they say to Bill these days, CHILL.

Anonymous said...

Well, here's what'll likely be a totally unpopular thought...

Just WHY should there be different rules depending on the nature of the victim? With all the documented evidence of provably false accusations by children, we should be MORE concerned with the unfettered ability to exercise full discovery in such cases. It has always bothered me that the defense bar just rolls over for the state on this.

Flame away...

Anonymous said...

As a felony ASA, I agree that it should be handled on a case by case basis. I have offered the same plea after depos and motions if I think it's appropriate. A blanket policy of no plea after depos or motions isn't realistic or always fair. However, if I think a D atty or his client is wasting time or screwing around, I'll withdraw the plea. Like I said, depends on the case. Let's not drag county court into this. At least in DUI's, we all know the game, wait and see if the cops show. The 1st minimums are exactly that, the minimum allowed by law. Nothing wrong with ASA's offering a mitigated plea at sounding to avoid that. I remember nothing more frustrating as an ASA when you say no 1st minimums day of trial, then the judge undercuts you! McWhorter used to do that constantly. Demoralizing.

Anonymous said...

There is no right to a plea offer, and there is no obligation to accept a plea offer.

I have an idea, for the next week how about if no defendant takes a plea? Maybe then all you ASA's, and judges will understand who's in charge

Anonymous said...

Dear Rump:
by definition, plea negotiation is a non-adversarial process where both the state and defense agree to resolve a case by reaching a compromise based on the strengths and weakness of a particular case. So when the ASA says that he/she will enhance the penalties if defense dose depos actually results in the process becoming truely adversarial by forcing the defense to make a choice: do depos and accept enhance plea or go to trial. By the way note that I agree with your basic premise that a defendant should not be punished for engaging in discovery but you can't have your cake and eat it too. I don't think you have a true appreciation of what it takes to truely prep a case as a prosecutor (I am talking about the bureacratic nonsense not actual trial prep) because if you did, you would realize that when the state offers CTS for a cocaine possession or PTI for grand theft and the defense attorney wants to engage in discovery, not because he/she truely believes that there is a viable motion to suppress but because he/she has not met with Mr. Green, causes the ASA to go back to the office and spend time on that case when the better use of that time would be to concentrate on a crime with a real victim. I have had cases where the defense has come up to me and expressed reservations about a plea because there actually appears that additional discovery is warranted to ensure that a viable motion or argument can be explored and in those instances, I have left the offer open until we actually bring the panel down for trial. However, my experience has been that more often than not, defense attorneys ask for continuances because they want to make sure that they are compensated fully for their services. I understand that part of being a defense attorney means that you have to be concerned about the actual business aspect of the law practice and if that's the reason why "additional discovery needs to be done" all you have to do is tell the prosecutor and you'd be surprised how accomodating we are because we know that eventually it will probably be a plea and we can devout our time on more serious cases. Bottom line is this, if there is a viable argument or motion to be made with the aid of additional discovery and a prosecutor threatens to enhance penalties then the prosecutor is engaging in unethical practice, in my opinion. On the other hand, if additional discovery needs to be done not because there is a viable issue but because you want to justify your fees to the client than don't bitch when the prosecutor threatens to enhance the plea. Whther this painfully long response to your two liner satisfies you or not is of no consequence to me, but that's the reality i live in as a prosecutor and i'd rather spend more time on a case where a victim was shot or beaten to a pulp because he chose to protect his property rather than a victimless crime such as coc. possession.

Anonymous said...

When you get such threats, go on the record and tell the judge the substance of the threat, how it affects your client's right to effective assistance of counsel, and how the state is putting you into a situation where you would be violating ethics rule if you give in to their threats.

Anonymous said...

Rump: You got it - I will contact the folks you suggest, and even go further, I have no problem in telling KFR personally. This is for your own referenec, please delete this post if you would. I will do the rest.

abe laeser said...

Your 'ALLEGATION' in a single word is: 'BULLSHIT.'

Rumpole, you need better sources.

Mr. Kahn spoke to me at least twice about his quandary - long before it became the stuff of Urban Blog Legend.

He was visibly upset that the defense had placed him in a horrible position by insisting that there would never be any plea to any charge.

I would suggest that - in the future - you get both sides of the story BEFORE you write. Journalists actually give this concept a thought before they publish. It is a burden that Bloggers should try to grasp, as well.

Anonymous said...

What Rumpole says regarding sex cases is an outrage. He says we should have a blanket policy of taking depos of victims on every case except sex cases. People charged with sex offenses are wrongly accused more than any others. They should have more of a right to depose, not less. And Seeking help from Richard Hersch who is the prosecutor's best friend on sex cases is like the chicken seeking help somewhere down the foxhole. Wake up Rumpole, don't you too kick the ALLEGED sex offenders underneath the bridge. Sex offenders are the only ones permanently sentenced to GPS and reporting requirements and to a life without a job, and now, to a life without a home in Dade County. And with all that on the line, aren't they entitled to the full weight of the Presumption of Innocence. Who there amongst us does not have sexual "issues" throw the first stone at the sex offenders under the Causeway.

Anonymous said...

Standard definition of a plea bargain

"A "plea bargain" is a deal offered by a prosecutor as an incentive for a defendant to plead guilty or no contest. If every case in the justice system went to trial, the courts would be so overloaded that they would effectively be shut down. Plea bargaining allows the prosecutor to obtain guilty or no contest pleas in cases that might otherwise go to trial."

So the reality is, already inherent in the concept of a plea bargain system, is that many defendants are giving up their rights to go to trial. All defendants have their rights to conduct discovery and go to trial. If all defendants exercised them, then there would be no way that the system could go on without more money being allocated to the SAO, the PDO, Conflict Counsel's Office, the JAC, the Courts, etc. 8:58's post says it all, it essentially is promoting to clog up the system and make it collapse.

One man's "threat" is another man's attempt to move cases off the docket. Because while the case remains on the docket, and continues to get sounding and trial dates, it is one more floating case in the system without finality.

That's the cold hard reality of things. So you're going to get a "day of arraignment only" special to avoid the matter dragging out. Or a special not to litigate further things. If the plea offer remained the same, there would be zero incentive to jump on a special.

Another question is: was there ever a threat to begin with? All the client got was one offer on one day with a proviso it be open that day only or maybe for a set number of days or prior to litigating certain issues. If not taken, then its off the table.

Fundamental Alternative Dispute Resolution 101 says, that obviously when two parties negotiate, they are considering various factors such as the benefit to each party, what they are going to lose out on by making a deal, monies expended and to be expended by continuing, manpower and resources expended and to further be expended by continuing, likelihood of prevailing, etc.

It sounds to me like what is being sought here, is a "no higher plea offers allowed" rule. That if the State offers a plea, that becomes the new upper limit of what should be given to a defendant. If he comes back for that plea 14 months later after dragging out the case and doing depositions at a snails pace, it should still be there. If he does a C4, motion to suppress physical evidence and motion to suppress statements and loses on those motions. It should still be there. And if he goes to trial and is found guilty, he should get that same offer again as his sentence.

However, should the case get weaker with dragging the matter out, then obviously the common sense thing to do, is lower that offer.

That hardly sounds realistic. It'd be real nice though for all accused!

Now that's not to say that if a threat is truly made, that isn't a problem. No ASA should be saying, "And if you don't take this offer right now, I'm going to enhance your client and seek the max..." That would always be clearly wrong.

Anonymous said...

State chief judge sues state to secure judicial pay hike

By: Joel Stashenko and Daniel Wise

Stymied for a fourth straight fiscal year in securing a pay raise for New York state court judges Chief Judge Judith S. Kaye sued the New York Legislature and Gov. David A. Paterson .

Ummm... Would Farina sue ?

Anonymous said...

If an ASA makes a plea offer and a defendant rejects it, in favor of having a lawyer take depos, file motions, etc - then the defendant runs the risk that when it's show time, the ASA won't make the same offer. That's why the better defense attorneys reject the notion they have to depose EVERYONE involved in a case or file frivilous motions. It's a tremendous waste of time and resources most of the time. Defense attorneys are not helpless... they can get a fair amount of information about the case from their own clients. Does this mean it's punishment for NOT taking a plea (if the depo reveals holes in the case or a motion results in suppression of evidence, the risk paid off), or was the initial pre-depo plea a reward for NOT wasting time and/or accepting responsibility for criminal conduct? 2 sides of same coin.

But the truth is, this post from Rumpole, like many others, is just a way to throw dirt at prosecutors and see what kind of trouble ensues. The blog is just not that interesting at this point (typical post: Rumpole rails against ASA's, defense attorneys join in the bitchfest, ASA's reply that defense attorneys are jerks, someone writes in with a modicum of reason, 10 others blather on about the Q, shumie or other moronic topic... then on to the next post). Lather, rinse, repeat. Talk about zzzzzzzz.

Anonymous said...

Obviously you haven't done any cases with Richard Hersch as Guardian where it has been clear that he is on a mission to destroy the right of Defendants to take depositions of the victim. Look at the horrible precedent he set and incessantly uses in Tarrago.

Anonymous said...

Please.

Reward those defendants who come forward early to accept responsibility by giving them (better) plea offers. Those who do not wish to do so, fine, exercise all the rights you want. Exercise them all the way to trial and beyond (oh wait, you don't really want a trial, you just want to see if you can beat the case some other way and when you can't you want to go back).

Expend the time and $$ of the people of this state (and pad them fees) by exercising "rights" that do not exist in 48 states or the federal system (or Florida misdemeanor cases for that matter). And BTW, the Florida Constitution contains no right to discovery. It's a court rule.

What, all those attorneys in all those other jurisdictions are ineffective?

Just don't be expecting a reward for doing so, and don't whine about it. Your ego may be better served by such tactics, but your clients are not. How zealous is that?

Anonymous said...

As a former ASA who now delves into the world of criminal defesne only occasionally and on less serious matters (although I did it more often after I left the SAO), here are my two cents worth:

1. Threatening to revoke or increase a plea because a defense attorney wants to take discovery is bullshit, with a handful of exceptions (child sex victims, making the chemists test all the drugs a defendant shit out, etc.). Even if an attorney is a true dick during discovery, I did not punish the defendant. One time in a case I was handling a defense attorney dragged out the deposition of a 6 year old victim of sex abuse for three hours just to be an asshole. I didn't hold it against his client. Instead, I filed a motion for sanctions, and must admit I enjoyed it when the judge ripped him a new one.

2. As for pretrial motions, if they are legitimate and a defense attorney can make a reasonable argument, fine. Don't jack up the plea. But both sides usually have a pretty good idea when a motion is legitimate or when it is not. In the case of a BS motion with no chance of being granted I see nothing wrong with increasing or revoking a plea. I will admit to doing it myself on occasion. The test I use is the "straight face" test. If you can make an argument to the Court with a straight face, the motion at least has merit. If you cannot, it should not be argued.

Anonymous said...

There were judges who would not put up with that type of behavior. The problem is they did not put up with similar crap from the defense bar. You did not like that and they are gone, by choice or by election loss. You wanted young, doe-in-the-headlights, I just want to get out of here to pick up my kids judges. You've got the weaklings you wanted on the bench so now live with it. You want strength, then take the bad with the good and let the good judges do their job. I have no sympathy for those who are complaining about the failure of judges to step in and assert their influence unless you are willing to let it happen in both directions. Judges are afraid of the backlash from intervening on either side.

There is only one word to describe your most recent post: HYPOCRITICAL.

Anonymous said...

Terry Chavez is one of the heroes for all of the public in the sao. Her dedication to the truly sick amongst us deserves respect and recognition. The comment may be off, but don't kill the messenger. Blame lays squarely with Don Horne, who remains incapable of effectively managing an office.

Anonymous said...

Talk about bullies let's take a look at the other side. In a recent event Judge Betty Butchko had a bad moment and made a mistake. We all have have such moments.

I have been told that despite her attempts to have the defendant and his family in chambers for an apology, the Public Defenders Office (that last bastion of good taste, decorum and professionalism)insisted that the matter be heard in open court and on the record. They then notified the Herald to be there. They packed the courtroom and went out of their way to unnecessarily humiliate a judge.

Judge Butchko made her second mistake by allowing the PD's Office to dictate to her how to handle this situation. If it were me I would have told them to stick it where the sun does not shine and do it in chambers and privately.

You may not like Judge Butchko's leanings toward the State, but no one has ever accused her of being a racist. If the actions of the Public Defender's Office in this and other like circumstances is not bullying then what is.

Shame on the State for bullying defendants and shame on the PDs for their bullying tactics against judges.

Anonymous said...

Actually, that is the new policy in Broward (surprise, surprise) ... if you demand discovery (like by filing pleadings), you are ineligible for PTI.

Twenty-year lawyer. said...

Nothing is lamer than the Florida Bar Ethics Hotline except, “I checked with the Florida Bar Ethics Hotline.” Those pinheads at the Bar would not know ethical behavior if it hit them on the head. Their telephone musings are just hot air.

Query: Can a prosecutor make a plea offer to avoid the deposition of a vulnerable or sensitive witness, say, a child who saw his parents gunned down when the QuickStop store they owned was robbed? The answer is clearly yes. Ergo, the Bar’s offhand opinion the “Rules of Professional Conduct to threaten Defense Counsel with no plea offer if they took discovery,” is dead wrong.

When lawyers are arguing and one side attacks the ethics of he other, I always assume the attacking lawyer is an unethical dirtbag. Unless the attacker is a baby lawyer, my assumption have always been correct.

Anonymous said...

Wrong.

Don Horn is a good guy.

Terry may have said something wrong but, she is a good person too.

I worked there and understand that no matter what the SAO says, they can not win.

Anonymous said...

Rump:

The ASA's have threatened to place a moratorium on your blog because you criticize their tactics.

It proves your point doesn't it? And thats the rub...

"If you continue on your frivolous pursuit to seek the truth on SAO policy, we will ban you"

Maybe sensorship will be their next policy.

It just doesn't stop.....

Anonymous said...

We need a post about hot PD's, ASA's, and clerks.

CAPTAIN said...

TO 10:59 pm

THE CAPTAIN REPORTS:

Do the math. The defendant was 20 years old; the boy was 9. He would had to have been 11 when the child was born.

Having said that, we are hereby instructing ALL defense attorneys from this time forward, in all cases involving victims - where a family member or members show up - or where the police pack the court with uniforms for a police officer as a victim case - to request the judge position those people in an area of the court that does not provide any ability for sympathy from the jury.

10:59 - you need to stop defending an indefensable act by a prosecutor who was WAY out of line. And the only one worse than the prosecutor in this matter was Butchko. What she should have said is: "Sir, last time I checked, the courtrooms of America are open to the public. Now sit down and get back to trying the case."

Judge Butchko, I am glad you apologized. I just hope that the next time an issue like this comes up, you kick the Prosecutor out of the courtroom for being an IDIOT.

CAPTAIN OUT .....

Anonymous said...

Negotiate or litigate. How many times have you heard those words? When I was an ASA that was the directive from Paulus. If one choses to engage in discovery (ie.. depos, weighing drugs) then one choses to litigate. Once one choses to litigate then the state will not make any offers and the case proceeds to trial. I would usually give the defense 10 days to make a decision. Often, I would discover that the cops lied or mistated the truth significantly. I usually discovered this during the motion to supress or at the depo. As a defense attorney now, I see how unreasonable it is. It is necessary to investigate claims. Sometimes the taking of depos helps your client see the light. Sometimes they expose mistakes made by the police. As long as we have the right to conduct discovery, I think that the narcotics position of "negotiate or litigate" is unreasonable.

Anonymous said...

Former ASA here-

I made "one time offers" only in very rare instances, such as a sex case or child victim. But I didn't sit there and force a plea down someone's throat if they chose to conduct discovery. If I filed a case, it was charged right and I could defend my filing decision even at the conclusion of discovery. If I couldnt, I would amend the offer or the charges to something appropriate for the case. That is a role of the prosecutor. Either reinforce your filing decision or come to the realization that your case is not a slam dunk like you thought. To simply revoke an offer when you know very little about a case is the sign of an immature prosecutor and you rarely see such tactics from veteran prosecutors who we all know and respect. This is why you see it occur most of the time in county court and with "C" ASAs.

When an ASA says they are revoking a plea unless it is taken before depos or some other artificial deadline, I simply roll my eyes. Then I tell my client that in three months, there will be another ASA prosecuting this case and we will likely get a better offer. Works about 99% of the time. And if the ASA is persistent, I simply whine to the judge a bit, then most judges will give the evil eye to the State and I get my original offer. I alos tellmy client that we can come back when the ASA's audit has swelled another 20 cases or so.

Anonymous said...

Capitan, I agree with your last comment but relax. Granted the defendant was 20 and the kid was 9, but not everyone looks their age. Don't accuse people of being stupid and say they can't do the math. Do you have any idea what either the kid or the defendant looked like? If not, then shut up and you should apologize.

Anonymous said...

Lets get back to what matters...
I dig the PD in Judge Schlesingers division. She's kind of tall, straight hair.
Whats her story?

Anonymous said...

Does Terry Chavez have a college degree? Does she have any experience other than running around the court house acting like an attorney?

I like Terry, good person, but she is not qualified!

CAPTAIN said...

to 3:09

You are correct, I apologize for my previous comments about the inability of them to do the math. The math is irrelevant to the issue.

The prosecutor was an IDIOT simply for asking someone to move from where they sat and all defense attorneys should demand that anyone sitting behind the State table during a trial, if that person/s is related in any way to the victim, should be asked to move too.

Cap Out ...

Anonymous said...

10:53 am, What is wrong with the Judge having to apologize in public? SHE publically embarrassed and humiliated a NINE year old BLACK child by throwing him out of the courtroom!!! Why should SHE be afforded the rights and dignity to HIDE her bigotry behind closed doors to make an apology unless maybe she wanted to offer the child a drink from her blacks only water fountain. Please!That apology should have been done on the courthouse steps under the banner "Never Again"!

Anonymous said...

If you think the Florida Bar ethics hotline people are "pin heads," then you will probably have an ethics problem someday.

They are great and give good advice.

Call them with a problem and you will see but, call them before you get in trouble. They will not give advice after you screwed up.

Anonymous said...

Actually I agree with The Captain. What is good for the goose is good for the gander. How many times have defense counsel objected to the presence of the victim's family in the courtroom or at least with them being located directly behind the State? How many times have the PDs put family members under subpeona and then invoked "the rule" in order to keep family members out of the courtroom? The reason being that they did not want the jury to believe that the State somehow represents the "victim" or for those family members to have a "sympathetic affect" on the jury.

Judge Butchko should have ignored the request or only asked Mr. Jones and his son to move from directly behind the defendant to another seat.

But this post by Rumpole relates to "bullying" and I reiterate that the Public Defenders' conduct was punitive and a direct attempt to intimidate Judge Butchko in matters beyond this incident. It is typical of Brummer's charges to act so self-righteous and confrontational.

Betty, don't buy into their antics. Those of us who have been the subject of such tactics from the PD will stand up for you. Ignore all of this and go about your business. Show no fear. Give no quarter. But most of all, don't ever again let them dictate to you how to conduct your courtroom. Remember what you were taught that first day at New Judges College: You are the judge. You decide what is on or off the record. You decide, if you need to, where and how you apologize.

Judges make mistakes. The good ones acknowledge those mistakes and do not repeat them. You are one of the good ones. I may not share your leanings (we all have them), but as long as you do what you believe is the right thing, you will sleep at night.

Anonymous said...

4:23 - I did not say there was anything wrong with the judge apologizing. But it is not up to you or anyone else to tell her how and in what forum she does so.

I would venture to say that the young man in question had no real conception of what had occurred and would have been just as mollified by a private meeting with the judge as to see his "humiliation" played out in front of a crowd of people and in the newspaper. The truth is that in attempting to apologize in private Judge Butchko was showing more concern and sensitivity for this young man than you and your fellow PDs, who were only interested in intimidating the judge and obtaining your "pound of flesh".

Stick that in your self-righteous pipe and smoke it.

Anonymous said...

It seems as though some people reporting on the kid in the courtroom story posted their comments on Saturday and some posted on Sunday. I ask everybody to please read the comments from both days in order to get a full dose of people's opinions. Personally, I think the comments from Saturday were better and more informed.

Anonymous said...

It seems as though Jack Thompson is rubbing off on this blog. Rumpole is attacking every ASA all of a sudden. Rumpole, you're messing it up for the rest of us as defense attorneys. ASA's, with the exception of a few loose cannons who shall remain nameless, do a fine, respectable job. I agree with 11:54 P.M. and with Abe Laeser.

Anonymous said...

Butchko may have made a wrong assumption about the black child belonging to the black defendant, but how is that racist? Don't black people usually have black children? I mean it's a stereotype maybe because the defendant may have had a white wife and had a white child. But how is it racist? It's not like she was saying no blacks can be in the courtroom. It's not like she said this courtroom is for whites only. Your logic just doesn't add up.

Anonymous said...

You should try to defend a case in NY. As Florida defense attorneys, we have it very easy. In most other states there are no depositions and discovery is bare minimum. In fact, most of the time I do not get my discovery until the day of trial.

Regarding enhancements of DUI 1mm, the only ones who complain are the game player attorneys who want a breakdown. When I was an ASA, I insisted on you telling me the Friday before trial if your client was taking a plea or face enhanced penalties. It is a waste of the officers time, the court's time, the witnesses' time, and the ASA's time preparing for a trial that the defense has NO intention of ever conducting. Therefore, I agree with the policy of enhancing penalties on the day of trial, and NO judge should ever undercut that plea off on the day of trial because then the judge is showing no respect to the ASA and his time.

Rumpole said...

My response to Mr. Laeser is that:

1) I have never identified the prosecutor by name because this was just what I said it was- an allegation.

2) I am not a journalist. That being said, I try my best to confirm matters. I can't just call the ASA put my hand over my mouth and say "hi- this is rumpole, can you confirm something for me" That is why I never identified him by name. This is not about him. It's about an SAO policy.

3) I really didn't want this to be about the drug case- this post is about prosecutors threatening defendants who exercise their rights. I used this case because in my experience the narcotics unit has a POLICY that they make very clear that upon taking a deposition- all plea offers are withdrawn, and to use Mr. Laeser's elegant legal term- that is BULLSHIT.

HR.

Anonymous said...

Rump, on the kid in the courtroom story, you should merge the comments from Saturday and Sunday (both parts on Sunday) so we can get a complete picture. All together there are more than 100 comments in this discussion. The story about taking pleas off the table for defendants who participate in discovery is a good one too.

Anonymous said...

BABY IN COURT: To Captain at 2:37 and 4:18 and to the courageous "anonymous" at 8:27 and 9:41. You people forget that no courtroom situations occur in a vaacum. As litigators (defense or SAO) our actions are determined by the litigation tactics of our opponents. The story assumes that the actions of prosecutor were based on seeing a young black child in court during a felony trial, and objecting to him sitting so close to the defendant, as the story goes. Look to the oponent, a public defender, had he ever done anything which would have led the prosecutor to believe that he may have been trying to pull a fast one. Had it been the defendant's child, any sympathy caused by his presence would have been real, innocent, and not feigned sympathy. The child here was a colleague of the defense attorney in trial. Some attorneys on both sides pull trial-time tactics which are deceiving and misleading simply to trigger sympathy from the jury. It is these improper tactics which the caselaw seeks to prevent, and which a court can prevent. Both sides are entitled to a fair trial. So I ask again, absent from this whole discussion is the question of whether the pd in trial had ever employed these misleading tactics, thus triggering the prosecutor to be weary of them going on - whether they actually were or not. If this is true, then it is important that Mr. Jones son WASN'T the son of the defendant, and race doesn't seem like much of a motivating factor at all, does it????

Anonymous said...

Dear 4:46:00 PM,

You forgot to leave your real name and posted under "anonymous," they won't know you are sucking up at your next FLA meeting.

The hotline is a waste of our money, as evidenced by the opinion everyone recognizes is wrong. If you really care, ask for a written opinion; by the time you read the rules you are asking an opinion on you will know the answer. Telephone advice is not worth the paper it is written on.

Anonymous said...

How about this? I challenge Jim Demiles to answer this question? If the child in the courtroom was a white child would you have reacted in the same manner? If the answer is no, then you sir are a bigot and an embarrassment to the office of the state attorney. If the answer is no, then you sir need to retake con law again and you are still an embarrasment to the office. Which one is it? Until I hear the truth I will forever look at Jim as the closet bigot who was so unsure over a weak case that he took it out on a child.

Anonymous said...

Hey 9:47 pm from 4/14: you can think whatever you want about the ASA... HE knows whether he is a good perso, or bad; a racist or not; and who he is a person. Your anonymous opinion shouldn't mean jack shit to him...
He made a mistake. What, like YOU never made one? Give the guy a break and get off your stupid soap box. Find a REAL cause to put your REAL name to instead of walking around with this insufferable wailing of outrage.

Anonymous said...

Who was the pd on the case?