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

Monday, April 14, 2008

THE OTHER SIDE OF THE COURTROOM

Let’s play pretend.

I’m a prosecutor. (I said this is pretend). I’ve been a lawyer for 3 years. I’ve tried a bunch of cases and now I have a trafficking case with a 25 year minimum mandatory. The drugs on the defendant were in a prescription bottle in the name of his girlfriend, and his girlfriend is sick.


His story doesn’t sound right, and he’s got some petty priors. I’m suspicious and based on the facts of the case he may have been selling his girlfriend’s drugs for money.

I talk with some people in my office and I offer 7 years. The defense says “no dice.” A few months go by, and I offer five years. “No dice”

Trial approaches and I’m concerned, so I discuss the case with some senior prosecutors and offer 3 ½ years. “No dice.”

Now the case proceeds to trial and the Herald quotes me as saying the legislator authorized the penalty and I’m just doing my job. A furor erupts and here we are.

According to some prosecutors, this may have been the scenario in the case we have been discussing, however I HAVE MADE UP THE PLEA OFFER NUMBERS FOR THE PURPOSES OF DISCUSSION. No one should place any weight in the possible plea offers I have speculated about here. I have no way of knowing if I am even close to what was discussed between the parties.

Looking at this from another angle, the issue may have been “what was the prosecutor to do?”

He does not believe the defendant is innocent.
He does not believe the 25 year minimum mandatory penalty is just in this case, and within the bounds of what his office has authorized, he has tried to settle the case.

The quote in Herald makes him look like an uncaring bureaucrat, and nothing could be further from the truth.

Rumpole says there are several solutions to his problem, starting with re-charging the Defendant with attempted trafficking. It is a serious crime, the guidelines can still be high, but there is no 25 year minimum mandatory sentence. But we are speaking from both experience and without a half dozen layers of supervisors sitting over us.

Does this scenario more accurately reflect what occurred before Judge Scola last week?

If it does, then blame still lies, in our opinion, with the State Attorneys Office.

Put simply, the charge to “do justice” outweighs even the arrogance or stupidity of a defendant or his attorney or both.

It is still wrong and an injustice to punish a defendant so severely for actions that do not merit that punishment, even where the defendant is not smart enough to resolve the case.

Because the legislature has seen fit to take drug sentencing out of the hands of (hopefully) experienced and learned Judges and place that awesome power in the hands of a 25 year old prosecutor, the prosecutor now bears the additional responsibility of making sure the punishment fits the crime. Therefore, even though this case can and probably should be seen from the other side of the courtroom, (the prosecutor’s side) the office of the SAO still bears the ultimate responsibility for explaining in this case why they insisted on trying a man for a crime where the punishment would not have been just.

See You In Court, sitting on the “other side” of the courtroom, just for the heck of it.

37 comments:

CAPTAIN said...

to 9:21 pm:

THE CAPTAIN REPORTS:

Ms. Scanziani is required to file her campaign report no later than April 10, 2008. The report covers the period from January 1 - March 31, 2008.

If she has no activity, (no contributions received and no expenditures made), she can file for a Waiver. The Waiver must be filed by April 10, 2008.

If she did file, the Election's office has not yet updated her information.

CAPTAIN OUT .....

CAPTAIN said...

PS:

Of the 10 County Court candidates, the Elections Office is reporting that 9have filed their 2008 Q-1 reports.

We will carefully look for the filing date for the Scanziani report

Cap Out ...

Anonymous said...

This is clearly a different Rumpole. If you review the posts prior to the April fools day switch you will see different syntax, different structure, and different style in the writing of the new Rumpole. It seems clear that a new rumpole has assumed the mantle of running the blog (see Dread Pirate Roberts) but who, and why?

Rumpole said...

Nah...just abandoned the "royal we" for a post or two. Same old loveable Rumpole.

Anonymous said...

Captain, Ruvin has not filed his report.

abe laeser said...

HORACE,
You still do not get it.

I know what power I wield -- and I understand that I can negotiate a result if the circumstances would justify it.

But I cannot change the facts -- particularly in light of either personal or public scrutiny. The State of Florida, through the legislature and the executive, has passed a law. I cannot choose to presume that this law does not apply to this defendant.

What would I say to the media if asked to explain my decision to make an unproveable charge (ATTEMPTED POSSESSION) against a defendant because I dislike the proveable crime?

If the answer to all plea inquiries is: Nolle Prosequi or Trial; the loss of reasonableness is NOT on the prosecutor's shoulders.

Perhaps because both you and I have only seen one side of the aisle, there is some difficulty in fathoming the awesome resposibility of the other side. I have tried to understand the problems, in the hope that [in spite of my reputation] I can act with compassion.

The junior lawyers in my office are not automotons. Most will go on to spend their careers as your brethren in the defense Bar, but they will have the benefit of comprehending the rigors of trying to be just, yet caring.

I still believe that you are taking easy shots at people who work way too hard for $40k, and then have their reputations trashed for doing their best.

What I cannot do is substitute my personal beliefs for my sworn oath to uphold the laws. What if an ASA decided that cannabis was an herb that has no potential for harm + chose not to prosecute? Would the world stop spinning? Of course not. Can each prosecutor make such personal decision about every crime and still maintain a semblance of due process of the laws? Can each prosecutor decide about abortion, euthanasia, crimes by the clergy?

We all know the answers. Please look at the world through OUR set of glasses, which cannot be rose colored.

Anonymous said...

Do you know the last time a judicial candidate has qualified for the election via the signature route (10K+), as opposed to ponying up the money? You gotta believe that if they qualified this way, that they really know how to get around in a grass-route's kind of way.

Anonymous said...

and the guessing continues. Boy is this fun.....

Seems like no one knows what happened in Scola's or Butchko's courtroom, and seems like no one's going to do anything about it.

Congratulations ladies, on 6 more years!

Anonymous said...

As a defense attorney, I see no problem with the SAO going forward on the trafficking charge. If the guy has priors and the facts warrant the charges, which they seem to do, then the SAO is in the right.

It is the BS cases like nonsense resisting without or charging $300 retail theft cases as a felony, where the SAO should start using discretion and amending charges.

Amending charges for a drug trafficker should only be done for plea negotiations or someone with no priors. Stop crying fellow defense bar members.

My gut is telling me that the Public Defender convinced his client he would walk and would have probably rejected a KNP! The PD's office instills in their clients not to take pleas unless the house is being given away.

Anonymous said...

17 days and counting down.

Former ASA said...

Rump, what if the defense took the following position--we are not going to plea to anything, regardless of what you offer. Every ASA has more than a few stories where they offered a very low plea on a crappy case, only to have it rejected by an obstinate defense attorney and/or incredibly stupid client. I remember one case where I offered misdemeanor battery and CTS on a lousy agg batt, but a good battery, and the defendant turned it down.

Every defense attorney (at least those who actually try a case at least once in a while) has a story about the stupid client who rejects a lowball plea, goes to trial and ends up incarcerated. I had this happen to a client of mine NORTH OF THE BORDER!

Keep this in mind. I have no idea what plea was offered, but it is more than clear that something well under the 25 year min man was conveyed. I have no idea what the APDs approach was about advising their client regarding a plea, but please bear in mind that there have been some suggestions that they refused to consider anything.

CAPTAIN said...

I noticed today that it has been exactly 5 years since the death of Gemma Cosentino. Amazing how time flies.

For those of you that did not know her, she was a fantastic attorney and, more importantly, she was an incredibly warm and caring person who brightened every room she walked into. She died at the young age of 48.

She will continue to be sorely missed.

Cap Out ....

CAPTAIN said...

Ms. Scanziani's report is showing up now as having been filed with the elections office.

Anonymous said...

Rumpole:

Think about this for a minute.... A guy is arrested for a misdemeanor. He has some generic valium and generic painkillers in his pocket (yes his pocket) when he is searched. No proof that he is a seller whatsoever.No proof that he is a purchaser whatsoever. He sits in jail since the fall of last year on a 500K bond because thats what the charge of trafficking uses as a guideline.

Motions or no motions, good judge or bad judge....An Assistant State Attorney argued to a jury why they should convict this guy of trafficking. The ASA wanted 25 years day for day on conviction. Read that again.
The facts could be spun somewhat for both sides like any other litigated case. But the fact remains that at the end of the day, this guy could, in a few months, have been starting a sentence of 25 years in a Florida prison.

That is a disgusting reality. Any attorney with a sense of moral decency that wants that type of punishment for a violation of law such as this is a danger to the fair and just administration of American jurisprudence.

P.S. Does a drunk driver pose more of a threat to public safety than the facts of this case?

Discuss among yourselves....

Anonymous said...

Not sure I agree with you on this.
The legislator hasn't left any discretion in the hands of the prosecutor. I think they are clearly sending a message that if a person commits this certain crime as we've outlined it, then this is the penalty that this person gets.

Is it really the responsibility of the prosecutor to make sure the punishment fits the crime?

Are we trying to determine if this person has committed the crime?

Or are we arguing that the law has so many possibilities for interpretation that it can't necessarily be applied across the board to every situation?
I think that's the problem with all these min/man laws that our wonderful lawmakers have put out there.

Anonymous said...

Gemma was my pd when I was an ASA before Judge Solomon.

She was great. Judge Solomon was a great guy too. He passed away a few years ago.

I miss them both.

Mike C.

Anonymous said...

how did gemma die captain?

Anonymous said...

I am so sick of people accusing others of being bigots and racists without first finding out about the person. Jim DeMiles is a stand-up guy who I happen to know feels terrible about these allegations. People who know Jim need to set the record straight on this blog the way we did when Tony was fired from the state attorney's office. How many fair plea offers has Jim made to black defendants? PD's who have dealt with Jim need to step up and answer that question. I know that he has always dealt fairly with my clients, black, hispanic, or white. It is amazing to me that Jim can do such good work and be such a decent and fair ASA for over 2 years,and yet all is forgotten over one snap decision made in the heat of battle. This was not a black and white thing, this was an adversarial thing. He was trying to avoid undue prejudice and didn't have the time to think it through.
I ask you this, how many people were in the court room at the time Jim made this request? This wasn't exactly the OJ Simpson trial. The courtroom was relatively empty. So it is reasonable to think that the 9 year old black kid seated in the audience behind the defendant is, in fact, related to the defendant; could possibly be his son. Does it matter? No. The kid would have the right to be there anyway. However, this is not something you should expect someone in the heat of battle to reason out. Perhaps he felt it was a ploy be the PD. Either way, let's not jump to conclusions please. Those of you who know Jim need to speak up!

Anonymous said...

I think it's pertinent, given current events, to note that Jack Thompson is now filing a Bar Complaint against the owner(s) of the JAABlog. (http://jaablog.jaablaw.com/2007/09/04/pardon-our-appearance.aspx?pg=7&view=linear)

He seems to enjoy burning bridges while he's still on them.

Anonymous said...

I agree that this is a different Rumpole. The new one does a lot more posting and attacks more. It's just a completely different personality.

Anonymous said...

The old Rumpole was more respectful. But clearly more than one person was and is running the blog.

Anonymous said...

I think Rumpole's April Fools joke did backfire. What's going on here?

Anonymous said...

Captain,

Nice of you to remember Gemma. She was my first trial partner when I was a fledgling PD way back in '83-84. Beautiful, talented and tenacious. May she rest in peace.

Robin Faber

Anonymous said...

Yea, I, too remember Gemma from back in the day. Beautiful heart, beautiful spirit, beautiful woman. I continue to miss her.

Anonymous said...

Fund raising totals Circuit Court Judge, through March 31, 2008
Fernandez raised $39,645
Barzee raised $130,215
Diane Ward raised $54,000
Loan $100,000
Donner raised $35,700
loan $ 100,000
Esquiroz $38,800
loan $43,270
Rodriguez raised $63,140
loan $75,000
Friedman raised $115,800

Firtel raised $152,272

Trawick raised $43,640

Lopez raised $74,693

Dresnick raised $123,380

Farina raised $110,386

Prescott raised 0

Pinero raised $39,230
Loan $3,000
Muir raised $3,197
Loan $150,000

Bagley raised $90,300
Loan $1,000

Chumbley raise $68,651
Loan $100,500
Cabellero raised 21,335
Loan $50,500

Kevin Emas raised $90,213
Loan $5,000

Wilson raised $93,243

Jeri Cohen raised $63,301
Loan $100,000Cuellar Raised 0
Loan $15,000
Shapiro Raised $24,180
Loan $25,200
Schumacher raised $81,450

J. Scola raised $109,041

R. Scola raised $113,460

Karlan raised $77,964
Loan $55,000

Sigler raised $83,899
Loan $58,000

Diaz raised $47,170
Loan $100,500

Tunis raised $41,685
Loan $65,000

Cueto Raised $4,450
Perez Velis raised$3,550
Loan $51,000

Colodny 0
Kopco raised $18,071
Loan $50,100
Millan raised $5,500

Garcia raised $14,825
Glick raised $47,094
Loan $100,000

Sam Pedro Iglesias raised $78,938
Loan $100,000
Segarra raised $2,610
Loan $8,550
Roniel Rodriguez 0

Corona raised $1,250
Loan $16,000
Cynamon raised $51,363
Loan $300,000

Anonymous said...

The syntax thing may be some confirmation of previous theories that no one Rumpole exists, but rather that "Rumpole" is actually several people writing under the single name. This might help to explain why Rumpole always has a convenient alibi when someone claims to have seen him.

Spiderman said...

Going back to defendants being unfairly punished for exercising their constitutional rights....HERE'S SOMETHING TO CHEW ON AND A MOTION I HAVE BEEN WORKING ON: Why do 1st time offender Pro Se defendants who are otherwise eligible for the Public Defender get no-jail-certified (just to get the PD discharged) while if that same defendant went and hired private counsel he/she'd be facing jail after trial. Where's the equity, fairness, justice in that? Ever hear of the 6th amendment? Maybe the equal protection clause?

CAPTAIN said...

In response to the inquiries:

The Scanziani paperwork is now online and it indicates that she filed her financial papers on April 11 at 4:39 PM. To be fair, she did mail them via overnight mail on the deadline day of April 10, 2008 and they arrived one day later. Therefore they were filed only one day late.

Cap Out ...

Anonymous said...

I have known Jimmy DeMiles, in and out court, for several years. I have never seen him act, or speak, in any racist way, ever.

I wasn't there when this happened in the courtroom, so i wont comment on it. I do know that Jimmy is being attacked unfairly.

He is a good guy and it looks like he made a split second bad decision. Who of us has not? I am very confident that decision was not made at all on race.

If you support Jimmy, like the previous poster and I do, sign your name. Anonymous posts dont carry a whole lot of credibility.

Terrence O'Sullivan

Anonymous said...

Response to Abe at Monday, April 14, 2008 11:29:00 PM

I was not going to chime in but here I go...

I get both you and Rumpole's point. My guess is that when you have a defendant who is not a violent offender facing 25 years in jail for pills (even if you have him on video selling them), is very hard to swallow.

You have powers that no other person in the United States have as a prosecutor. You will decide the fate of so many in what can be called the defendants crap shoot with the jury.

Nolle Prosequi is just one of the many tools a prosecutor can use. If a prosecutor decided to Nolle Prosequi a non-violent case (with no priors) and the defendant is truly a repeat (customer) offender he will 9 times out of 10 be back in court within the time allowed by law to re-file the case. Unless you have a crystal ball I believe this is the way to go.

In the pill bottle case I sense from reading about the case that Mr. Defendant declined a reasonable plea offer? He also had prior Felony convictions? If that is true and he got convicted for the 25 years he may have “made his bed so now sleep in it”.

To be clear, all violent cases should not be treated with kid gloves in any sense of the word.

As to the kid in the Court room fiasco. I have never seem anything taken so out of context and blown out of proportion as the attacking of the Judge and prosecutor. On that subject I side with Abe.

Anonymous said...

Jim is an excellent lawyer not a racist. After all who posted the Nazi photos? He does not deserve this... if you want to slander him use your REAL name!!!

Anonymous said...

Eig raised $39, 419
loan $280,000

Anonymous said...

Boring
Hot! spinner clerk WOW! now that's a topic.

Free Mary Jane said...

Abe asks, “What if an ASA decided that cannabis was an herb that has no potential for harm + chose not to prosecute?” Then it would be one tiny act of good by an agent of a sovereign whose nature has become entirely too fascistic.

An assistant state attorney can waive a drug trafficking minimum mandatory anytime he wants, if the facts do not justify a twenty-five year day-for-day term, the prosecutor should not seek it. This is done routinely through the state. The DOC reception centers log incoming trafficking sentences without minimum mandatories every day. The argument, “rules are rules” is fascism. The common law ideal is a just result in every single case based on the peculiar and unique facts of that particular case; the fascist wants a uniform rule applied no matter what. Whining about somebody else’s unjust order but carrying it out anyway is just being a good Nazi. Oh, and Abe, there are no good Nazis.

As I write this there is a man deep in the bowels of Florida State Prison who was sent Raiford by a judge who knew evil when it peered up at him from the dock. A sentence was fashioned that would keep this criminal, a serial robber of the elderly, or an unredeemable arsonist with a sexual fetish, in prison for the rest of his life. What that judge didn’t know was that a 30 year-old construction worker supporting three kids and a wife would pull a 25 year sentence for driving his “cousin’s” car to Jacksonville with a kilo in the trunk. Now they are pulling the vampire rapist out of his cage, settling him loose on society to make room for George the carpenter.

Our drug laws are evil. They are racist in application and design; the brutal tool of a brutal sovereign who want to keep closed the doors of perception to keep the masses enslaved. Please don’t brag about following legislative orders.

Arn't I brave, I used the G word! said...

Hey, can we stop calling each other racists? Isn’t it just the pot calling the kettle black. We are human beings, of course we are racists, duh. Here is another thing, we all say stupid things. When you couple deep-rooted racism with general human stupidity and put them in the pressure of a trial; then you get stupid actions.

The point of racism is not that it is not as much a part of the human condition as greed, envy or lust, the point is one has to resist giving into the temptation of racism and look not at the other, but a fellow human made in the likeness and image of God.

Anonymous said...

Legislative orders. Why do we even need ASA's? The orders can be followed and enforced by a cheaper and more efficient workforce. Oh wait.... thats Castro's Cuba.

Discretion is not a sign of weakness. Whatever problem a prosecutor has with defense counsel or is offended by an aggressive defense should be set aside as petty. The prosecutors posting and directing blame toward the defense proves the point: a lack of maturity and a lack of ability to exercise prejudice and discretion.

That clearly was not demonstrated.

David S. Markus said...

The blog has not been pleasant reading in the past few days.
As to the kid in the Courtroom:I would not know Mr. DeMille if i fell over him. I was pleased to read his letter. I think it is outrageous to call him a racist based on what occurred. I think he would have done the same thing if it was a white defendant/white kid. As a defense atty, I certainly do not want the victim's family crying in the front row. A courtroom is public, but the judge can certainly direct where people sit.Judge Butchko made a mistake in throwing the kid out instead of having him sit somewhere else. That doesn't make her a racist; every mistake a judge makes is not racially motivated. The public defenders accusation of racism seems more like a cheap shot to a judge he doesn't like than a legitimate accusation of racism. Spurious accusations like that demean the seriousness of real racist actions and raise the spectre of "the little boy who cried wolf" when there is a real basis to cry racism(Hopefully, he won't say that I am racist because I used an analogy with the word "boy" in it).
As to the pill case: Lost in the hyperbole of Nazis is the real question posed by HR. What if the state won? I assume that the guy was eating his girlfriend's pills or even selling them, although there didn't seem to be any evidence of the latter. Is 25 the right number? The "it's the law and we have no choice" argument reminds me of a question I was asked at my SAO interview. I was asked if police arrested a couple for fornication, a crime on the books, would I prosecute? This led to a discussion of prosecutorial discretion. I guess my answer of No was correct because I got hired. What is the correct answer today? Yes? Prosecutors exercise a considerable amount of discretion in every case they handle. But when it comes to a trafficking case, common sense goes out the window. If the prosecutor said, I feel 25 is the right number because of xyz reasons, I could disagree, think him a fool, but still respect him for making a decision that he thought out even if i thought he was dead wrong. I do not know if the min mand was sought because he thought it appropriate, or because he felt he had to. If he felt it was wrong, did he go to KFR? If not, he has himself to live with. If he thought 25 was the right number, we can loudly diagree, but calling him a nazi is moronic. I am tired of hearing "my hands are tied" from prosecutors who would rather not make waves than fight for what they think is right. Of course, I worked for Janet Reno, so I have a different perpective on life in the SAO. It was a different world back then. Ms. Reno had an open door policy and I went over the head of many supervisors when I thought they were wrong. She is a brilliant woman who was always willing to listen. She asked tough questions and expected me to know the answers. At the end of the discusssion, I felt as if she considered the individual case and decided based on the case, not policy. She considered what the victim and police wanted, but did not let her judgement be controlled by them. Office policy is never an answer. Policy is what cowards who are afraid to think for themselves and/or make waves hide behind. I regret that today's prosecutor's did not get to work for a person the caliber of Janet Reno. I am proud of the time I spent as an ASA. I only had to worry about doing the right thing as dictated by my conscience. I knew that the boss had my back if I had a good reason for a particular decision.

Thanks for listening

David S. Markus