Thursday, June 12, 2008

WELCOME TO OUR WORLD MIKE MAYO

Sun Sentinel Columnist Mike Mayo wrote this
IN HIS BLOG
recently about Broward Attorney Sean Conway’s decision to accept a public reprimand from the Florida Bar:

Part of me is disappointed that attorney Sean Conway backed down from an important free speech fight against the Florida Bar for an Internet posting in which he called Broward Circuit Judge Cheryl Aleman “an evil, unfair witch.”
But part of me understands completely.
There was simply too much risk involved. If he lost this Bar fight, he could have lost his livelihood.
In the end, the practical outweighed the principle.
And that’s what scares me almost more than anything.
When a lawyer is afraid to challenge rules that might be unconstitutional and stand up for what he thinks is right, where does that leave the rest of us?



Welcome to the world of criminal defense Mr. Mayo.

Let’s say you’re a lawyer and you’re defending a client who was stopped by the police. Inside the vehicle the police found 100 pills of oxycodone in a prescription bottle with the name of a woman on it. You’re client tries to explain to the police that the drugs belong to his girlfriend. She has cancer and he just dropped her off at a friends house and she left the bottle of drugs in his glove compartment. “Sure” says the cop and arrests your client for trafficking in drugs.

The prosecution files the case, and after reviewing the evidence says to you that they believe you and your client’s girlfriend but it’s still a crime for him to be in possession of the drugs, however, because of the circumstances the prosecutor will waive the prison minimum mandatory and offer your client a simple possession charge, 6 months in the local jail and 5 years on probation.

Your client is innocent. What do you do?
You try the case and win and he goes home. You try it and a jury buys the “letter of the law” crap and your client catches 10 years in prison or more.
What do you do?

The simple fact is that everyday people make the same decision Sean Conway made. He was innocent. The First Amendment protects his right to speech in all but the most extreme circumstances. But he could not afford a negative verdict and possible loss of his right to practice law, so he settled.

Our clients in criminal court settle every day. Every day there is some defendant rotting in jail because the judge won’t lower his bond who takes a plea because he is losing his job and apartment and needs to get out no matter the consequences. Its an open secret that judges well know that people in jail are more willing to take a plea that will close the case and get them out of jail, then someone who is already out of jail. Some honest judges will tell you that the older judges who trained them in the art of keeping their overall case load low told them to do just that.

And then there are the minimum mandatory prison sentences. You see, somewhere during the 1980’s the legislature got the bright idea that a 25 year old prosecutor one year out of law school had more wisdom and experience to decide the appropriate jail sentence for a defendant than a 60 year old judge who has been on the bench 20 years. So the legislature started writing minimum mandatory penalties for all sorts of crimes- from misdemeanor DUIs to gun cases and drug trafficking cases. And no matter how good your client is; no matter if she is 65 years old and has never been arrested before in her life, if she is charged with a crime that carries a minimum mandatory penalty, then the only person on the lord’s green earth who can waive the minimum mandatory prison sentence is the prosecutor. The judge is nothing more than a (not so interested) bystander.

You try dealing with some snot nosed 25 year old trying to make a name for themselves in their office when you have an innocent client, or a client dying of AIDS or cancer, or a client who for any number of reasons needs the wisdom and experience of a person who was born before 1980 to help determine the proper sentence in their case. And then when this prosecutor decides- and they pretty much have unfettered discretion in fashioning any sentence they wish- to be gracious enough to waive the minimum mandatory, you see if you and your client have the guts to turn down that offer and risk perhaps the next few decades of their life in prison, just to fight for something as silly as the truth, or justice, or in Mr. Conway’s case- an important principle.

Hopefully Mr. Conway’s case has opened your eyes a bit to the coercive nature of our court system. We like to brag about our justice system. Well, from someone on the inside who has laboured in this system for a few decades, let me give you the inside scoop- in technical legal terms: it sucks. It’s broke. It needs fixing.

If you’ve got a million bucks maybe, maybe you can buy yourself some justice. If you can afford bond, and afford to live a few years without working while your attorney investigates and fights your case- and if you’ve got the cohones to risk the next few decades of your life- then you can place your hands in our vaunted jury system.

Hopefully you have a judge who has not decided to go earn the name “maximum”.

Hopefully you have a prosecutor who wants to do whats right.

Hopefully your fate does not rest on unreliable eyewitness evidence. How many innocent people have been let off of death row and out of prison because they were innocent? The count is well over 200 by now.

Hopefully you have a lawyer who didn’t snatch up your case on a late Friday afternoon for a quick two grand to help him pay his rent. Hopefully you went to a lawyer who was referred to you by someone other than the bondsman who is getting a kick-back from the lawyer on the fee. (That’s illegal by the way, and if you really want to do an expose on the justice system, start with that block buster.)

And in the end, if it all goes wrong, then hopefully, like Scooter Libby you can just call your friend the President and get your sentence commuted.

But unless you have a friendship with the President to fall back on, then like millions of other people do every year, you will settle your case like Mr. Conway did, even if the Judge is an unfair, evil witch.

47 comments:

Anonymous said...

" ...even if the Judge is an unfair, evil witch."

I disagree I think she is just an evil witch.

Anonymous said...

take a f$&*(&*)&%g bow Rumpole...

and now, here comes the government apologists "they're all guilty" jerk offs

Anonymous said...

Rump,
Generally i agree with your post. However, as a former ASA and a current defense attorney, i can tell you that there are still some prosecutors (though not enough) who will and do try to do the right and just thing until that is, when they have to go to the Assistant Chiefs who care more about deciding where to go for lunch than justice.

abe laeser said...

No more bad ganja for Rumpy.

Snot-nosed 25 year old who gets a gold star for prosecuting the innocent? Have you been watching 'My Cousin Vinnie' on a continuous loop?

Conway should have stood his ground. What does that have to do with a client you think is innocent? No one wants to prosecute the innocent. You give your client your best advice, then gird your loins for battle.

Stop blaming the thoughtful and caring 25 year old, just out of school, who is doing their very best to "Do the right thing".

Who has been writing this BLOG for you recently?

Georgia peach y'all. said...

Coupla questions rump.
I'm new to the blog. You don't mind a Georgia Peach with blonde hair and a dazzling smile to inquire do you?

OK- There is as I under stand it a near mythical lawyer named "Shumie." He is the subject of great controversy as I read here.

When he stops working during any part of the day, it becomes "Shumie time" right?

And now apparently he has been having problems with waiters and iced tea so there is now "Shumie the Musical" which somehow details in song his fights with waiters.

Have I got it correct so far?

Question: is Shumie the Q?
Question: is Shumie his real name?

Question: How does Shuimie feel about this and does he ever post on the blog?

Thanks rumpola.

Rumpole said...

The point Mr. Laeser, and I readily admit to poetic license with the snot nosed comment- is that between Judges who strive for the nickname "Maximum" and the ever increasing swarth of minimum mandatory penalties, innocent people take pleas every day because we all know the system is far from perfect and innocent people are convicted and when they are, there are now life altering penalties for crimes that in some cases do not deserve them.

You operate in rarefied air. You prosecute the worst of the worst and as citizens of Dade we owe you thanks.

But do you see what goes on around and beneath you? The person who runs on to property, swipes a bottle of wine from a table, and gets 20 years for an occupied burglary? Or the person who burglarizes a shed for toilet paper and gets 40 years?

Or the guy doing 25 years because of his debilitating and painful disease and his possession of trafficking amounts of prescribed pain pills?

Do you really think a person with no priors is better off with having his future decided by a prosecutor born in 1982 or a Judge born in 1950. While I agree the answer may vary, on the whole don't we want experienced people to be the ones handing out sentences?

Anonymous said...

abe

you need to smoke a little gonga

Anonymous said...

"While I agree the answer may vary, on the whole don't we want experienced people to be the ones handing out sentences?"

Experienced at what? Since when does chronological age = life experience? Or significant legal experience for that matter? You can't generalize. People come from a lot of different places and a lot of different experiences...I've met some 20something year olds who have been through a hell of a lot more in their lifetime than those born in 1950. It's about the person, each taken individually, and not some general notion of "well, if you're old and gray you must be wiser and better equipped to make a decision..."

A 20something who's been to hell and back...

Anonymous said...

rump where do you practice? most dade judges couldnt give a shit about any cases or anyone calling them tough on crime. most care about closing cases and clearing dockets. are you kidding about the "maximum" thing, judge eig gives away the courthouse, especially if you say you will marry your girlfriend, and does anyone say anything? anyone run against him? herald make an issue of it? nah after all he stood there next to all those other publicity seekers who shamelessly promoted themselves on the Elian case.

rump most dade judge genuflect before the defense attorneys who give them campaign dollars and beat up on asa's. this is a fact and i dont work at the sao

CAPTAIN said...

Spirited debate today on Migna vs. Manny. I wondering whether it is time for some really qualified attorney to run as a write-in candidate?

Next week we feature Group 19:

Yvonne Colodny vs. Patricia Kopco vs. Stephen Millan

Hope that you are all enjoying the series!

CAPTAIN OUT ......

abe laeser said...

I do see, study, and even advise the junior prosecutors. So do many of the other senior staff. We know what goes on, but we are not in the supervisory loop. Being born in 1980 or 1950 is not the problem. All things could be solved by a certain strength of will. That courage is a very rare commodity in the halls of justice.

Oh, did you want me to build a perfect / moral criminal justice system. What would be the first step?

Let us begin with my friends on the bench. Greatness has eluded the vast majority. They never sought it, and they now know that money and influence can keep them in office until they reach 70 - then retire at full salary. Of course, that assumes that they have the presently correct last name to be re-elected, and loads of rich friends to help with their campaign.

I happen to have friends who are British Barristers. They laugh out loud when I tell them that after only five years post-Bar Exam, one can be elected or appointed Judge. To be the lowest level magistrate in Britain, you are selected by the sitting Magistrates, from among those who have been selected to become Queen's Counsel - with a minimum of 15 years of full time trial experience.

Those judges would never consider blindly following the junior prosecutor's recommendation. They cannot be voted out for following their own moral compass.

They are never cruel or abusive. They were selected from the same august persons who practice trial law before them. Since the prosecution and defense may change sides for each new cases - they gain a perspective which we miss, the understanding that petulance is not justice. One upsmanship can come back to haunt on their very next case.

Enough venting. Yes, I am an anglophile - at least to the extent that their criminal sanctioning system makes both legal and moral sense.

By the way, carping from the sidelines never changed the results of the game. Push your peers to be JQC members, to participate in Rules changes, join to develop strength to create true change.

Run the most qualified for all offices, not those who seek a sinecure. Too many - on both sides of the aisle - fear the courtroom, yet claim to be trial lawyers. The crucible of the trial is still our best approximation of true justice.

Just another late night with Uncle Abe.

Anonymous said...

I have to repeat what someone wrote because as a jewish american in miami I agree with the writer.

Anonymous said...
Funny thing Freedom of Speech, it goes hand in glove with the intemperate behavior, and always involves the four P's - persecution, prosecution, pass, and protection. It all depends on who the orator or act is, and boils down to whether the "establishment" and those with delusions of power decide to persecute you or protect you. For example, compare Former Judge Ivan Hernandez and still Judge Jeri Beth Cohen, the former had a pompous judicial assistant, the latter made a pompous statement herself to the effect that the problem our community has is we cannot send the Cubans back to Cuba cause if we could our jails would not be so crowded. In my humble opinion, a pompous JA is less dangerous than an intemperate Judge, and we deal with pompous JA’s often. Consider the recent case handled by Judge Cohen, and her failure to address the blatant conduct by the Attorneys and the witnesses, who admittedly fabricated evidence. You tell me, again, what warranted the tribal assault against Ivan Hernandez, and the cloak of protection afforded Cohn. We all recall the “establishment” going after Hernandez, while circling the wagons around Cohen? Many of us know the temperament of both Hernandez and Cohn, so no need to editorialize, suffice it to say we all have faults - the cosmic baker took us out of the oven too soon - but on the balance I can live with slow, but not with a loose brainless tongue. So why the differential treatment accorded these two members of the bench, Perhaps the pièce de résistance was the allegation that Hernandez’ JA was fielding a candidate against Judge Liefman? I know, there are some who will comment that it was because Hernandez was derelict in his supervision of his JA. Well, I offer the following: lawyer goes to Judge Farina with a documented pattern of abusive conduct by a JA, and less than judicial conduct by the judge; lawyers staff caught JA engaging in the equivalent of ex-parte communication, disparaging lawyers’ office, and expressing admiration for opposing counsel; the particular judge’s mood swings are well known in the legal community (civil). End result, Judge and JA are both still employed, happily ever after. So put that in your pipe and smoke it next time you think “who” you are doe not matter!!

Wednesday, June 11, 2008 5:53:00 PM

Anonymous said...

The coolest Ruskie this side of the Politbureau and Putin is our own Viktor Vedmed. We call him The Russian Rocket.

He runs his miami traffic ticket empire like an old Brezhnev ran Russia- with an iron fist.

Anonymous said...

Best Post of the year Rumpy

Anonymous said...

Write in-Abe.

Anonymous said...

"...they pretty much have unfettered discretion in fashioning any sentence they wish..."

Rumpole, YOU of all people should know that we ASAs have very little discretion.

Anonymous said...

Rump you need a vacation. Sounds like the job is getting you down. I would be more sympathetic to you if I felt that most criminal defendants were the ones you speak of. Most defendants are dealt a fair shake because they are guilty. We have good defense lawyers to fight for the ones who are not, or who are at least not as guilty as the state says they are. There are undoubtedly some people that get jobbed, like the ones you refer to. But that should make you want to fight harder for what you do, not just bellyache about it and weep, yearning for a more perfect justice system. Since human beings run all of them, there are no perfect systems. So take a vacation, get back to work, and stop your whining.

Anonymous said...

The point is a little off Rumpy, because you know as much as anyone, that the one who prosecutes is not the same as the one making judgments on the minimum mandatory.

I believe if your 25-year old prosecutor truly had discretion, you'd end up not having any problems. Because ASA's are fly by night and at the end of the day, they do their 3 years, get their trials and they are history. And many of them end up defense attorneys.

That being said, young 25-year old prosecutors are going to be pressured by the judge to waive a min man and close a case out. They are going to come up against a defense attorney who's going to be convincingly persuasive about waiving that min man. And they are not going to want to piss off the people in the future who they may likely work for, work alongside and have to appear before, when they become defense attorneys.

So that being said, the problem is the roadblocks the 25-year old prosecutors are up against. Chiefs. Division Chiefs, Assistant Chiefs, Chief Assistants. Career Criminal/Robbery, Narcotics, etc.

The usual LEO friendly suspects who are going to tell them not to waive anything and to "have a good trial." The same suspects who never want to go to court, and like to say "no" while sitting in their comfortable offices, but if they somehow get hauled in, in front of a Judge, suddenly themselves, magically start waiving things. Because they will keep saying the "no" word when insulated from the judges using the 25-year old snot nosed ASA as a buffer.

But who in front of those judges, themselves never want to be known for being difficult and drawing a judge's ire for not waiving a min man.

What happened to that part of the analysis, Rumpy?

Anonymous said...

The PD's office used to be a much better place. Now they are having all these problems, not taking cases, what is going on? While there are many, many fine attorneys at the PD's office, they have people like Migna supervising young attorneys, God help us all. It is a shame that people like her who get fired from the Federal PD's office and come back crying to Brummer with a tail under her skirt even get the job back. Brummer, what kind of an example are you setting for the future APDs? Why don't you pay more attention to who supervises your newcoming attorneys, after all, they will continue our legacy.

Anonymous said...

To be a Judge in Florida one must:

Have tried at least 4 cases in each level of the justice system from criminal, juvi, family, civil, and have also filed and briefed at least one appeal.

Second, have been a member of the Florida bar for at least 10 years. If this is good for the supreme court and district appeals court why not? The 5 year min is a joke. Look at Judge Newman took the bar never practiced and waited for five years and bam Judge.

Allow politics into the races so we known how they stand on issues that matter to us.

Finally, each Judge candidate should have to take the bar exam before filing and if failed the test you have to wait for the next election cycle. Why because you have to wonder if some of the Judges we have today actually took the test. Lets just be sure.

just thoughts.

Anonymous said...

Manny is qualified. If he was not qualified would the following people be running his campiagn?

Barnaby Lee Minn
Blanca M. Valle
Esther Jacobo
Gary Winston
Jose "Pepe" M. Herrera
Juan De Jesus Gonzalez
Kertch Conze
Larry Handfield
Leah Klein
Maritza Betancourt
M. Cristina Escobar
Michael Mirer
Paul S. Vicary
Richard C. Jacobs
Victoria Mendez
Zeljka Bozanic

Just Mr. Minn name as your support team will get you elected. Right Jack?

Rumpole said...

I did not post a comment about a former judge, not because he is a friend of mine, but because you make scandalous allegations I have no way of knowing are true. You want to write he could not carry a other judge's jockstraps? No problem. The other stuff- related to "digits" I cannot allow absent proof.

Anonymous said...

News on David Nelson:

http://www.highbeam.com/doc/1G1-91428659.html

Anonymous said...

Couldn't possibly agree more with 4:02. The problems occur when discretion is in the hands of someone without accountability. When min mans can only be waived by someone in Career Criminal who hasn't been in court since the Clinton administration, then they don't have to face the music after they make a decision based upon bravado and not common sense. Equally problematic, for C's anyway, are the filing decisions by the Felony Screening Unit. In addition to the fact that they never go to court, too many of these people are in FSU because they were not successful in division, anyway. So, not only do they lack accountability, but some also didn't have good judgment in the first place. (Of course, there are exceptions).

And Rump, there's a reason why all the min mans are in place. Before them, too many of your omnipotent 60 year old judges with 20 years on the bench would give a probation plea to a defendant facing a life felony with dozens of violent felony priors. Why would a judge do such a silly thing? Because the defense attorney representing the defendant is a huge campaign donor. Stop electing judges, and many of your problems in the criminal justice system will go away.

Anonymous said...

manny may be qualified to try misdemeanors over at dv, but a judge? Come on! And who is that list of supporters. Never heard of them.

Scott Saul said...

Hey 6/13/08 @ 8:28 p.m.!

You are a loser for knocking a deceased person.

You are also a tremendous jerk for knocking a guy that dedicated his whole life (he worked until he dropped) to defending people, that assisted countless clients, that was a very generous man who would have helped anybody, who did not worship the all mighty dollar and who impacted every lawyer and Judge that worked in the builidng since the 60's.

If a client lays out $250,000 then all points can be covered. It is a unrealistic to think that clients, even well to do clients, have the funds to tend to every issue that possibly needs attention. We all do our best with the cards that are dealt to us and the resources we have to work with.

Sy represented the common man and his client's received more than their money's worth. I am sure that he had a striking amount of aquittals, probably (because of the amount of trials he did) more than most.

When you foolishly call him
"Rule 3", check his Bar record. Any discipline? How many of his cases were reversed? Did his lawyering create the wrong results?

Whoever you are, if you needed assistance, guidance, coverage etc, he would have provided it to you.

An ability to be a bad, mediocre, good or great trial lawyer is not as important as they ability to carry oneself with honor and class.

Maybe you are the most meticulous lawyer in the world but you have no honor and class.

Anonymous said...

I cannot believe that you would allow a post that even remotely states that the problem in this community is that you can't send the Cubans back to Cuba in order to end jail overcrowding? What are you doing here Rump? What happened with at least some modicum of decency on this blog. Such a post is highly offenssive and patently false.

Anonymous said...

Manny, we are tired of your ravings. Move on.

Anonymous said...

Shumie is not the Q.

His real name is Alan Jerome Shuminer.

Ask Shumie himself how he feels about this and whether he posts in this blog.

Dr.Hobo said...

i hate sandwiches!

Anonymous said...

8:28..........how pathetic your life must be to attack a dead man. Sad.

Anonymous said...

4:02....

You say that the the defense bar would have "no problems" if the 25 year old (translation: rookie) ASAs had discretion. First, that assumes every one of them would cave. When I was a young ASA in the early '90's, I gave away nothing. I leaned the other way (and admittedly, too far). Defense attorneys were all to happy to go to my supervisors. Funny how none of them appreciated my discretion. Second, many of the young ASAs lack the discretion to make appropriate decisions. That's not a knock on them, it's a fact. I was way to sheltered to understand the difficulties that many of my defendants faced and overcame. I was too harsh. Others didn't appreciate the pain the defendants inflicted on victims. They were too soft. The fact is, young ASAs need to learn perspective before they can be entrusted with discretion.

And no, I'm no longer a prosecutor. I left years ago.

I'm just sayin'..........

Rumpole said...

Sorry I allowed that stupid and insidious comments about Sy to slip through. I've been busy and trying to clear a lot of comments at once. I removed it and thanks to those that defended Sy.

Rumpole said...

11:33 am- that type of comment is clearly political speech and you may not agree with it, but I'm not censoring it.

Anonymous said...

Hey Migna will win, she has Tony Sprano (Hector Lombana) and Tony Montana (Al Milian) runnign her campaign. Also,I understand just for back up she has consulted the Reverend Pichardo to sacrafice a goat and a red rooster to the Orishas for protection. Manny for his part, could only afford Col. Sanders and the lunch special, which he shared with Jeff Schwartz, who is mentoring him!

Anonymous said...

If the state would allow us to add the name "HAM SANDWICH" on the ballot with Manny and Migna the Sandwich would win by a landslide.

What a freaking joke these two. How did this happen over 10,000 attorneys in Miami Dade and we end up with this ....

Anonymous said...

4:02 here.

Never said each 25-year old snot nosed ASA was a robot who always acted the same way.

Some make unreasonable pleas because they can.

Some make unreasonable pleas because they want trial stats, i.e. want to try every case they can.

Some give the farm to make friends.

Some give the farm to try to be agreeable and work things out.

Some give the farm because they actually understand what's going on and make a decision after reasoned judgment.

Some either give unreasonable pleas or give the farm for reasons that aren't listed here.

But trust me, there are a lot of C ASA's who would give better pleas, if they could in the crazy min man situations.

Anonymous said...

11:33 am, that comment was made by Jeri Beth Cohen from the bench, and somehow the Cuban American Bar Association "forgave" her for it.

Re-Elect Judge Jeri B. Cohen... said...

Please re-elect my dear friend Judge Jeri B. Cohen. Visit

http://www.judgejeribethcohen.com/

The web site is full of information that each and everyone of you will need in making a clear decision to re-elect Judge Cohen.

Anonymous said...

Funny how the judges can say whatever they want about lawyers in their opinions free from civill liability or criticism. And don't have to do a damn thing even when the Bar clears the lawyer. Makes me ill.

Anonymous said...

We all say stupid things.

You guys who keep bringing up Jeri's comment make me laugh. Anyone who knows her knows that she's a screaming liberal who harbors no ill will against anyone. THAT's why she was forgiven.

Anonymous said...

leave manny alone. anyone who is willing to video tape himself and show the world what a retard he is has my vote.

EYE ON SEGARRA said...

This Manny Segarra guy, whom I don't know at all, was probably born here yet can't even read off a cue card in his ads.

This guy is inarticulate and comes off like a dolt. He may not be either, but it plays that way.

Whoever is mentoring him needs shine up this guys public persona. What does it say about Segarra's judgment when he allows lower-than-you-tube quality videos to be aired on his VOTE FOR ME FOR CIRCUIT JUDGE website.

I'm writing in PECKINS name.

Anonymous said...

"Ham Sandwich" would be easily defeated by "Jamon Sandwich" and absolutely creamed by "Elena Ruiz".... you are obviously a political neophyte in Dade! Best, Della Street

Anonymous said...

I like the fact that Segarra has cojones to put up videos on his website. He comes off as a likeable guy.

Anonymous said...

It's an Elena Ruz sandwich, not Ruiz.
/Here's more info on an Elena Ruz sandwich than you ever need to know:

Anonymous said...

Honestly those videos on Manny are the biggest joke around the Court house. Just today me and Judge _____ just could not stop laughing.

If your depressed and need a good laugh here is the cure www.mannysegarra.com