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

Tuesday, November 18, 2008

DEBATE 101

Somehow, right in the middle of reading case law, we saw this article on NFL playoffs. 

Faithful blog reader BTDT says in a comment that we have the greatest system of justice in the world.  

Rumpole responds: Hooey. This system stinks to high hell.  1) Capital punishment. 2) Capital punishment for the mentally ill. 3) A sentencing system totally out of wack driven by Hollywood fear mongering that stirs up moronic legislatures. Which  brings us to 4) Minimum Mandatory sentencing. Our system vests more power in the hands of a 25 year old prosecutor than the 55 year old judge she is prosecuting the case before.  5) Sentencing and "the trial tax". Sentences so out of wack that even experienced lawyers tell innocent clients to take a plea to avoid the judge imposing an outrageous sentence after trial. 6) How many innocent people exonerated from death row? Since 1973 there have been 130 people released from death row because of  proof that they were innocent. Read about it here. 
If the most important and closely scrutinized  cases-handled by the supposedly most experienced lawyers-produce so many wrongful convictions, how many other people not on death row are wasting away in prison serving decades for crimes they did not commit?  Ten thousand? Twenty thousand? There's over a million people incarcerated in the US- so 20,000 innocent people amounts to a 2% error rate. Intolerable.  Read about the 947 years campaign to see the horrific effects on wrongfully convicted people.

Anyway, that's our 10 cent synopsis with why we think this system stinks. 

But the debate is for you. 

Pro....Con....write in and have at it. Best comments get on the front page. 

39 comments:

Anonymous said...

I usually tell my clients that they just got involved with the criminal legal system, not the criminal justice system.

Anonymous said...

Mike,

I found Sandra Veiga. She is locked in the "vault" with the rest of the states hidden Brady material. Just send your notice to her there.

Sherlock Holmes

Anonymous said...

Innocent folks don't go to jail in Miami. We got it good down here.

Anonymous said...

Rumpole,

I actually disagree with you. BTDT stated that we have the greatest system in the world. You have correctly pointed out the numerous flaws in our system. But what system in the world is better than ours? I don't believe one exist and you have failed to give an example other than point out our flaws. Yes, ours needs to be improved; but compared to all of the others, it is the best.

Anonymous said...

Winston Churchill said that the problem with democracy is that it is the worst form of government--except for all of the others. I must take the same view of the American criminal justice system. It is far from perfect. Rumpole's comments, particularly those involving mandatory sentencing, have merit. Yet in our system we have open trials, right to a trial by jury in all felony cases (some states do not allow trial by jury for minor misdemeanors), strict rules of evidence and, most importantly, a presumption of innocence until proven guilty by a reasonable doubt. Plus we have meaningful appellate review and habeas corpus.

Compare this to the criminal justice "system" in many other nations..........

Rumpole said...

Here's what has me upset: The hypocrisy: I was in federal court last year. I issued a subpoena for a co-defendant whose case had closed. The Judge quashed the subpoena- telling me he was sure the person would just take the fifth and it would be a waste of time.

I have two colleagues who have spoken to me about what is going on in DUI court- there is a former state witness who apparently committed evidence tampering and perjury- the Judges are giving them a hard time to subpoena or depose this person. THESE VERY SAME JUDGES who are so proud of their plea colloquies that inform defendants that they can go to trial and if their attorneys want to subpoena a witness on their behalf they can do so.
Sorry because I rarely do this but BULLSHIT. It's all a farce. They mouth these wonderful words but when it comes time to put it into action they won't issue the subpoenas, or give you a day to get the witness in, or some other crap.

Go see how they bully people into taking pleas in Broward.

In dade the SAO continually tries to set plea offers depending upon whether the attorney takes depos or not.

Show me a justice system that allows the defendant to test and challenge and confront the evidence against him or her- and if they lose- gets sentenced fairly. THAT is a system I want to be a part of because it sure as hell isn't in this country.

batman said...

Rump -

You all wanted elected judges. You did not push for, or campaign for, merit retention. I understand the significance and downside of such a system, but what you are getting through elections stinks.

You have young people with little or no legal experience who wouldn't see $150K a year if they had to steal it. Put that together with playing to the cops and the public instead of the law and this is what you get.

You may not like the personality of some judges, but those are the ones that usually have the confidence to rule and let the political chips fall where they may. I'm sorry but you can not have it all your way all the time.

Anonymous said...

Rump,

The challenge still remains: what legal system in the world is better than ours?

abe laeser said...

The British criminal legal system is 'better'.

The Barristers can all try cases at the highest of skill levels (Queen's Counsel). Barristers are selected exclusively upon their courtroom skills, after the completion of law college. Queen's Counsel are selected by those who are already Q.C.'s, as representing the best of the new class - after many years as Barrister. Those not selected from law college handle transactional work, and are called Solicitors.

Barristers can defend or prosecute, or litigate civil cases. They are for hire, and the salary is negotiated based upon the level of skill.

The trial judges have a minimum of 15 years experience as Barristers, and are selected by their peers for advancement. The very best handle the equivalent of our Circuit Cases at trial.

Professionalism is a concept that never died in our British brethren.

Therefore, I make the case that their system is better.

P.S. Cases can be dismissed if the "Crown" or counsel discuss the case in the media. Wonder if some of our local defense attorneys could practice exclusively INSIDE the courtroom?

Anonymous said...

Unfortunately I think Presumption of Innocence has flown out the window. Empty talk at this point.
Everyone 'knows' that because my client was arrested, he did it.
And with 2 yrs probation v. 5 yrs state, I gotta tell you, the innocent don't want to take the chance on what they view as an already screwed up system.

batman said...

What Mr. Laeser forgets about the British system, is not only are the judges selected by the Barristers, but to be a Barrister you have to pass a separate bar exam and to be a judge you must also pass qualifying tests just to be considered.

How many of our judges could pass the kind of tests that would prove their worthiness and ability to be on the bench. Oops. Not many!!!

Rumpole said...

The point I agree with Mr. Laeser on is that in England the level of skill of an attorney is recognized by their position. And you have to be at a certain position to handle certain cases. From the defense point, I wonder if Mr. Laeser realizes the total frustration we defense attorneys feel when we've spent 5-10 years working for little money in the SAO or PD- training to handle bigger cases- and then we open a practice- and we don't commit illegal acts like taking cases and giving kickbacks to bondsmen- and then we appear in court wondering how we're going to pay our bills and see some pissant lawyer who has no idea how to try a case handle a big drug trafficking case or a murder case, etc. And of course they screw it up. So the client gets hurt, the lawyers who are trained and have the skills to handle the case lose the client to scumsucking dirt bags who sleep with bondsmen, and the system breaks down.

CAPTAIN said...

P.S. Cases can be dismissed if the "Crown" or counsel discuss the case in the media. Wonder if some of our local defense attorneys could practice exclusively INSIDE the courtroom?

THE CAPTAIN RESPONDS:

Abe:

I KNOW that Alex Acosta NEVER holds a press conference every time they arrest someone. And rarely does KFR do the same!

Cap Out ....

Anonymous said...

Oh abe, you are so smart. can i have your autograph.

shumie time guy said...

The weirdest thing happened. While optioning the movie rights to Shumie Time the Movie, HBO bought the rights to The Making of Shumie Time, The Movie, even though we have not yet ben green-lighted for the movie itself. Hollywood sure is weirder than Miami courts. And that says a lot.

Anonymous said...

CAP 1
ABE up to bat.

Anonymous said...

Rump, as two of your other readers pointed out, you are debating with yourself (which, knowing you is not an accident............you like a good debate and I have little doubt are simply twisting my comment to provoke one on an issue I never raised). I never said our system is perfect; simply the best there is. Can it be improved? Of course. Just like everything else in our great country. Still, I remain convinced that there is no better system than ours, Abe's comment notwithstanding (qualified counsel does not, in and of itself, make for a great system. The purpose of the system, after all, is not to produce good lawyers, but to produce just and fair results).

No system created by human beings, implemented by human beings, administered by human beings that relies on decisions by human beings will ever be close to perfect. You see glass half empty, I see a glass half full.

Instead of complaining about it as so many here are wont to do, let's work together to improve it.

BTDT

PS---your innocence stats grossly exaggerate the evidence. That's the problem with the debate. As in the election, people tend to run to one extreme or the other. The truth is somewhere in the middle.

Rumpole said...

Here's the problem BTDT- when you speak about the gross misrepresentation of the innocence statistics- it's all well and good for us to sit here in our offices or our homes and debate these issues in a refined manner. Meanwhile there are human beings whose lives have been wasted and destroyed because they are rotting in prison. And if that isn't bad enough, have you tried to file a 2255 or 3.850 motion lately? Have you read the case law? Have you seen the statements from the US Supreme Court that ACTUAL INNOCENCE doesn't matter vis a vis missing a deadline? What kind of system keeps innocent people in jail because negligent lawyers blow deadlines????

ONE INNOCENT PERSON IN JAIL IS TOO MANY. PERIOD. IF YOU DISAGREE, GO SPEND CHRISTMAS VACATION IN A PRISON AND THEN LET ME KNOW HOW YOU FEEL.

Anonymous said...

rump, time for you to give it up. why would you participate in such a flawed system for so long? perhaps you should make something and be productive instead of coddling criminals as long as you have. blah, blah, blah.

Anonymous said...

My two cents worth:

1. BTDT's points are quite valid, especially his last post.

2. While Abe Laeser's observations about the British system are certainly of interest, two points to raise. While it takes a certain degree of experience to become an accomplished trial lawyer, just because someone has been practicing for 20, 30 or even 40 years does not automatically make them a superior lawyer. Also, in the British system the lawyers police themselves and pick judges without oversight. I doubt that would go well over here, especially given that most surveys show that only about 20% of Americans fully trust lawyers.

3. Rump--your comments about those that don't play by the rules lead me to the conclusion that the Florida Bar must not simply "wink" at some of these business practices. The Florida Bar is tough--while I have not been disciplined, I am admitted in two other states--but not tough enough in this area.

Regarding your complaints about discovery, try practicing criminal law in other states (which I now do). No depositions, or maybe depositions in very serious cases only, and they are limited in scope. Your pretrial discovery is police reports and witness statements, which the State tends to wait about 3 to 4 months to turn over, and a preliminary hearing presided over by some nonlawyer yutz who will keep your cross-examination short and narrow. (Don't get me started on cops who won't let you look at their reports because you insist on having a prelminary hearing). Defense lawyers have it pretty good in Florida.

Rumpole said...

My point precisely. If we have it "good" here, and things are as bad as I say they are, then how can we brag about our Justice System? It stinks. it's broken and it's nothing to be proud of.

Anonymous said...

It is tough being Rumpole, I mean emailing Herald reporters and getting replies like this one from oh, susanna...

"Ahh, the intrigue.
I'm about to board a plane bound for a little-known lodge on the banks of a lovely volcanic lake in the middle of an ancient jungle.
I'll be eager to hear the whole story when I get back."

Anonymous said...

Ahh, the intrigue.
I'm about to board a plane bound for a little-known lodge on the banks of a lovely volcanic lake in the middle of an ancient jungle.
I'll be eager to hear the whole story when I get back.

Susanna Nesmith

abe laeser said...

Whoa, Captain Courageous.

I am not the elected or appointed politician. They need the face time to move in their political worlds and to notify the general public of thier efforts.

I thought that we were talking about the trial lawyer. I cannot win a case in the media. The worst result is a change of venue. Some on the defense side think that you can win a case by 'good' publicity. How does that make anyone better at this profession?

How does the issue of Acosta or KFR going on TV make this a better system of justice than the British one? Can our local talking heads appearances on FOX news actually make the world more just?

I work in a wonderful, but flawed system. I suggest that the British system is better.

Wasn't that the original question posed by Rumpole?

Anonymous said...

Rump, it was ugly, but the Brownies pulled it off last night!

Anonymous said...

Our system of justice is imperfect.Can iy be repaired,of course.But co-operation from the defense bar and the stae are necessary.
Years practicing law means little:
what did the practice consist of.Doing contract or probate law does not make a good trial attorney,not even an adequate trial attorney.Trial attorneys do not automatically become knowledgable in contract,or real estate.
Young attorneys starting with the state or public defender are to get sufficient training to learn how to be trial attorneys.But proper training and oversight by those experienced is necessary.The teaching of the state and p.d. fall far short than that necessary.They also teach unfortunately gamemanship.
Judges receive misstatement from both sides.How many time does the state say they have the case ready,the jury is brought down and then the state will ask for continuance:only a strong judge will not put up with this tactic.Yest How many are willing to.
The p.d.often times place similar games.Not filing motions on time,not setting motions for hearing,providing incorrectr information in discovery and the list goes on.Once againg the judge may not be aware of the situation and perhaps makes a ruling that he received the proper information would have differed from that made.
The Florida Bar does not police the members of the bar appropriately in many cases.We have now allowed the "practice of law"to become a business and not a profession.We allow attorneys to stand in for other attorney and others,with the client never having met the attorney who is representing him in court.Yes, this is the practice not in circuit court but county court.We have attorneys appearing in county court,representing defendants in criminal matters(not major felonies but only criminal traffic and misdemeanors)who do not even have a file for the defendantd or case.But he represents the defendat who never met the attorney before.Some judges have spoken to this,but most will not speak up because when election time comes,they need the support and money from these "traffic/misdemanor clinic"One judge has spoken and many do not appreciate his comments.The Florida Bar has ruled this type of action is not improper.Are the crazy!!!Woulkad any one of the members of the Board of the Florida Bar allow an attorney to represent them in court whom they have never met,nor discussed the case with?Doubt it.
So,I will agree we do have a potentially excellent system of justice,but we the public,and we the members of the bar,and we members of the judiciary must speak up:newspapers,reporter from the media must become more vigilent and report whenthe system fails!!!
No Judicial System can ever be perfect.But we must attempt to at least get "Justice" and "integrity"back into the justice system.

Anonymous said...

Rump...

It amuses how hard you're trying to pick a fight with me.........

I don't disagree that one innocent in jail is too many. I've said that many times. I also think it's a TRAVESTY that innocence isn't enough. However, you can't just blame legislators, judges and prosecutors. How many cases (particularly capital cases) are dragged out and how many bogus claims of innocence are filed? Who's filing those claims?

;-)

We all know that many offenders who claim innocence are in fact guilty as hell.

Our system is flawed and many of us work hard to improve it........

BUT, that doesn't mean we can't be proud of what we've got.

Our system is the greatest in the world and has come a very long way in a very short amount of time. Think of all the great improvements of the last 40-50 years. And, think of what's to come with a new President and balanced USSC. Appreciate the fact that we are secure in our homes, which can't be searched without a warrant issued by an objective judge or magistrate unless there are exigent or unusual circumstances (and that all searches and seizures, even those conducted under a warrant, can be reviewed!!!!). Appreciate the fact that people have the right to remain silent and the right to an attorney at all critical stages. Appreciate the fact that prosecutors are swor to do justice instead of win convictions. Appreciate the fact that our system continues to place a tremendous burden of proof on the State despite public outcry about crime. Apprieciate the fact that we can deselect jurors for cause when we have a reasonable doubt about their ability to be fair and simply by discretion in some cases. Appreciate the fact that jurors decide cases. And appreciate the fact that we're always trying to improve things.

It could be far worse.

BTDT

Anonymous said...

BTDT's identity revealed!!!
http://www.metacafe.com/watch/757366/debra_cassano_been_there_done_that/

Rumpole said...

BTDT- as one of my favourite Presidents said "there you go again" calling our system the greatest in the world.

Any system of justice that executes the mentally ill (or for that matter condones capital punishment) is NOT the greatest. It is not even great. Our blood lust to kill people puts us right up there with China, Iran, and North Korea. Wow. What great company to be in. This is nothing to be proud of, and in fact I am deeply ashamed of a system that has such little respect for the sanctity of human life that judges would and have let innocent people rot in jail in the name of applying a rule of procedure. We stink.

Anonymous said...

Changes are Coming! The Justice building will have some old and new faces next year. I hear Reyes, Areces, Leban, Thomas, Leesfield, Eig, Schlessinger, and thank god Adrien are out. Miller, Barzee, Sayfie, Colodny, Migna, Glick, Pineiro, Trawick are in. Did I miss anyone? I hope Miller bought his own fax machine!

Anonymous said...

Abe:

Thank you for your comments and professional discourse. I know that I am not alone when I say that we appreciate your comments and point of view from that side of the fence. Please don't allow yourself to be silenced by the critics and haters.

BR

Anonymous said...

This country has turned the corner with the election of Obama. And as Bob Marley said," if your not happy,, you gonna,,,travel wide. Travel wide..." So stop your bitchen and go be an activist. Or else, specialize in pti.

Peace

Anonymous said...

BTDT--Are you serious about search/seizure issues? Do you practice criminal law? Do you have any poor clients? Police have long ago figured out how to write a-forms to get around search/seizure issues--take a look at any paraphenalia/simple coke possession a form. 90% of the time it will say something like "Joe Shmoe dropped a pipe/baggie to the ground as we approached. I maintained sight of it and arrested Joe Schmoe." Prosecutors and judges know damn well these a forms are bullshit, they are fine with it because in the four corners of what is says it complies with search/seizure law. Illegal searches happen 100 times a day in Miami, easily. If you feel confident that yourself and your house are secure from an illegal search and seizure, it is only because you are rich enough that the cops aren't barging in on people in your neighborhood. Nobody who has any experience in the criminal justice system could seriously believe otherwise. But for the grace of God, it could be you walking down the street on your block grabbed, patted down, and arrested for no reason by the police. In the country with the "best criminal justice system in the world".

fake and crazy jack thompson said...

4:32,

The mental institution is a better place. We get to make crafts but they don't allow the mental patients to hold scissors. Every night we get served pudding with our meds.

Anonymous said...

9:32........et all.......and Rump:

I wonder how much experience those of you who condemn our system have ever looked at another system.... Seriously, we've got a long way to go, but if you think there are other, better systems, you ought to do some reading and/or get out more.

I'm not blindly optimistic. I know there's a lot more work to be done. I've said it several times and have repeatedly put my money where my mouth is. Either you're not reading my posts or you're too angry to read them rationally. Get past your anger........it's no doing you or anyone else any good. Instead, direct your energies to helping fix the system.

BTDT

PS---9:32, yes, I do feel safe in my home and when I walk on the streets. I wish were "rich" as you suggest. But, I'm not. Because I prioritize trying to improve the system over making money. And, yes, I know some cops abuse their powers. But, I've seen enough to know that most try to do their jobs professionally. And, I've plenty of prosecutors and/or judges "see the light" on appropriate, well argued motions and do the right thing. Get past your anger, ditch the rhetoric, make a good argument and you'll see how many do the right thing.

Anonymous said...

THERE ARE CURRENTLY NO ASIAN-AMERICAN JUDGES IN THE STATE OF FLORIDA

How many Haitian Judges are there?

How many Arab Judges are there?

Are there any American Indian Judges on the Bench?

Anonymous said...

The best way to get a bad law repealed is to enforce it strictly. Well, the same principal applies to the legal system. Come on guys, the SAO pulls there nonsense on the lawyers who they know will fold. Why take their BS. Those of us who have the experience appreciate the difference between a good and a bad case, or as in poker, a bad hand you have to fold, of course some of us bluff, so be it. The point is there are only so many good trail lawyers in the SAO, especially in the baby division. If we allow fold or are intimidated by either one of our delusional Judges or a “Nancy Grace” or “Jack MaCoy” wanna be baby prosecutor, and as a result we forgo a meritorious motion or plea a case we know we have a better that 50/50 chance of winning, we deserve the abuse. Think about it guys, if we push these guys to trial in Newman’s, Ortiz’, Lindsey’s, Bloom’s, Miranda’s divisions, there are only so many trials they can handle. Sooner or later they will give up. Oh, by the way, when they start sentencing your clients, go downtown files a writ of mandamus requiring the Fire Marshal to enforce occupancy caps, I hear the County Jail System is currently some 1800 inmates over capacity, not to mention the rodent infestation in the main jail. I wonder about the consequences of the jail system collapsing. I hear a recent presentation by the director of corrections to a County Commission committee mention 300 million to update and bring the County jail system up to capacity. Do we have the courage to push back, or are we a bunch of wind bags? If we do not propose pushing back, then shut the up and live with the nonsense.
Yes, I made a point of naming only the “notorious” Judges (Prosecutors in Robes), I trust you appreciate I did not mention the fair and just like Arzola, Fernandez, Krieger-Martin, or Francis.
So if you all think the idea merits implementation, lets target the “notorious” Judges, wonder how long it will take us to run them to the Civil Division, perhaps we can get some trades with Civil.
Comments, Criticism, and Condemnation are all expected, welcomed, and appreciated.

Anonymous said...

Gwen filed suit in Court on 11-13-2008.

MARGOLIS, GWEN vs SOLA, LESTER
Case Number (LOCAL): 2008-69935-CA-01 Judicial Section: 08
Case Number (STATE): 13-2008-CA-069935-0000-01 Case Type: 17
Consolidated Case Number: N/A Filing Date: 11/13/2008

Party Code Party Name
PN 01 MARGOLIS, GWEN
DN 01 SOLA, LESTER
DN 02 ELECTIONS OF MIAMI DADE CO ETC
DN 03 GARCIA, PEDRO

Defense-lawyer-for-the-princess said...

9:36, Hey Jacko do they permit laptops in the nut ward or are you out on a day pass?

Hey Rump my Latin sugar princess has a special Thanksgiving surprise she wants to give me!