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

Wednesday, April 15, 2009

3rd DCA ROUNDUP

If it's Thursday, (or sometime thereafter) it must be time for our weekly and weakly review of the opinions issued by that monument to justice in Kendall- the 3rd DCA.

Speaking of Justice, we start with a rousing affirmation of a drug trafficking conviction of two Defendants in Lelieve v. State, which stands for the proposition that for  3 judges appointed by Jeb Bush, there is little the state can do wrong at trial, including violating a pre-trial motion in limine, and allowing the prosecution to argue at closing evidence that was not introduced at trial. What's a little problem like arguing for guilt based on evidence that does not exist among republican judges? Not much here.  Throw in the 3rd DCAs view that the trial court properly denied  a motion to continue to allow the defense to subpoena witnesses that just re-entered the jurisdiction,  and you have all the makings of justice 3rd DCA style. 

Here's the problem with that last little issue: if the defendant had pled guilty, the court would have conducted a solemn plea colloquy assuring the defendant that in this wonderful country of ours, which has the greatest legal system known,  if the defendant wanted to subpoena witnesses the attorney for the defendant could do so, and use the power of the court to enforce those subpoenas. 

So as we see it, you can plead guilty and be assured you can subpoena witnesses, but if you go to trial and really want to do it, no dice. Hmm...


What is it about rule 3.850 motions that makes judges go nuts and forget all the case law they are given at those barren and arduous judicial retreats? 

 While not joining our wall of shame, Judge John Schlessinger gets honorable mention in Cury v. State for denying a rule  3  BEFORE the case was decided on appeal. Come on Judge, even PD interns know that the appeal must be final before the rule 3 can be filed. The appeals court straightened Judge S out, and ruled the denial was a denial without prejudice. Good luck Mr. Cury on bringing that rule 3 back before Judge Schlesinger a second time. 

Ah, but Judge Venzer does join our HALL OF SHAME for denying a rule 3 without a hearing and without attaching the portion of the record conclusively proving the defendant is not entitled to relief.  See Wiggins v. State. 

So what have we learned today?  "A rule 3 before appeal will not prevail"; (will one of our robed readers please cut and past that little ditty and email it to Judge Schlessinger in Civil court. Actually if about 10 of you do it, it will really be fun.) 

If you want to subpoena a witness for trial, you can, if you plead guilty. If you really want a trial, then try bringing the argument up somewhere other than that court right next to the FIU campus. 


UPDATE (non legal or REGB related)
The year was 1976, and this tall and gangly rookie pitcher for the Detroit Tigers burst on to the Major League Baseball scene with a complete game 2-1 win. He stalked the mound, talked to the ball, bent down and smoothed the pitcher's mound with his hand, and captured fans around the nation with his genuine love for the game and fun antics. He was Mark "The Bird" Fidrych and he died yesterday at age 54 in an accident. 


This was a time and an era when superstar baseball players did not come with their own management and team of trainers. This was a time when a new star player in this most  American of   sports could and did capture  the entire attention of our country. 
Mark Fidrych was everything that was right and great about baseball. His death is a tragic loss for his family. 


41 comments:

Anonymous said...

Technically the 3rd DCA is in Westchester, not Kendall. Obviously you've never really been there Rumperoony.

Anonymous said...

...and if they're northern that makes it even worse.

Anonymous said...

File a speedy demand and you better be ready for trial.....playing games with the rule is bullshit and I'm glad Thomas didn't play that game......I love how you guys file the demand and then suddenly "discover" new defense witnesses on the day of trial to try to back out....it is such a game and it hurts the system...I'm glad the 3rd doesn't buy into that crap....you got to be kidding me Rumple

Anonymous said...

why does this surprise you? so many judges are just plain lazy and dont want to look at these things. the judges ought to do like they do in federal court and assign one county judge as acting circuit to handle most of these that dont require evidentiary hearings. this would give someone the time to handle all these bullshit rule 3's.

Anonymous said...

I hear Don Horn is serving all trial subpoenas in dade county.

Anonymous said...

The 3rd is in Sweetwater.

Anonymous said...

STOP the Don Horn bashing! He's the hardest working man in show business!

Jason Wandner said...

Actually, Rump, you are incorrect when you state that you cannot file a 3.850 motion until the direct appeal is final. In fact, if there are grounds for post-conviction relief such as the discovery of new evidence (that is found after the appellate court has obtained jurisdiction of the cause) the proper remedy is to file a motion for the DCA to relinquish jurisdiction back to the trial court for purposes of considering a 3.850 motion based upon the discovery of new evidence. If granted, you then file the 3.850 in the trial court reserving the right to file an additional 3.850 (on grounds of ineffective assistance of trial counsel or whatever else) if no relief is granted on the new evidence issue and if the direct appeal is denied. Then, if relief is granted, the appeal is dismissed. If relief is not granted, you then file a seperate notice of appeal of the denial of the 3.850 and move to consolidate the two appeals.

Anonymous said...

It's cute how some prosecutor said we drop speedy demands and it's bullshit. How about 50% of what you do is bullshit and I drop about one speedy a year.

Anonymous said...

Rump-nothing about Harry Kalas?? The Phillies fans are in mourning here....

Anonymous said...

If we can destroy them, you bet your life we will destroy them.

Anonymous said...

Okay Rump. You opened this can of worms. In honour of the Bird, it is now time to name the zaniest sports story of the 70's, a decade of infamy for sports, politics, economics, music, and just about anything else worth mentioning. I nominate Fritz Peterson and Mike Kekich, two Yankee teamates who participated in the most notable trade of the decade. In mid-season, they switched wives! That's right. An even swap. And right after, they were traded for real by the Yankees. Tough to beat that one.

Anonymous said...

Rumour is Don Horn fired himself (twice) for failing to fill the copy machine paper on time. The second firing is for not firing himself on time.

EyeOnBlecher said...

Correction: DUI Lawyer Blecher is marrying O'Henry Candy Bar hieress Sue Ellen Mischke.

Rumpole said...

You are technically correct Mr. Wandner- however if you insist on being so technical I am going to be forced to ban you from the blog and send you over to the civil blog, where those boyz and girlz live for such technicalities. Here in criminal law, we do what is normal and reasonable. And all the case law says, absent extraordinary circumstances, like say a former judge representing a defendant, there are only rare circumstances where such ineffectiveness can be raised on direct appeal.

OK. you've got one civil law strike against you. Be careful.

Anonymous said...

Pls stop bashing the Don. He is a tremendous asset to the SAO and the people of Dade. What would we do without him?????

And Scott Miller is awesome, too!

Anonymous said...

I believe Markus is incorrect in his prediction of the Castroneves verdict. Since Helio's attorneys argued that he was not guilty because he was simply relying on the advice of his attorney, Alan Miller, the jury probably agreed and found Miller guilty on all counts. As to Castroneves and his sister, the jury has probably acquitted them on the counts where the jury reached verdicts.

Jason Wandner said...

Rumpus, thank you so much for confessing that your broad statement of last night regarding the ripeness of 3.850 motions was technically incorrect. I am sure the average pd intern would appreciate learning that there are always exceptions in the law.

As I am sure you will agree it is those legal technicalities and exceptions that make the difference between guilty and not guilty, admission versus suppression, and life versus death.

Recognizing those technicalities and exceptions is often the difference between competant and incompetant lawyering, wouldn't you agree?

What is normal and reasonable lawyering to some would be to do only that much which they are obligated to do for their clients, while to others it means doing everything they are legally able to do for their clients.

There a certainly members of both persuasions in the field of criminal law.

I guess this is strike two huh?

the trialmaster said...

I read in the Florida Bar Journal today that a Ben Daniels passed away in November,2008. Is this the same former state prosecuter and then Federal proscuter who practied in Miami? I hope not.

old guy said...

That Ben Daniels is very much alive -- not too young, but alive.
I have even had dinner with him since November.

Anonymous said...

I had dinner with don. Lousy tipper

Anonymous said...

I saw Ben Daniels just last week. he is working as an AUSA. That of course does not mean he is alive as it is well known that having a heart or even warm blood may disqualify one from employment at the us attorneys office. Jason G

batman said...

In the DBR this morning Peter (If I Only Had a Brain) Adrien in response to Swartz and Ruiz-Cohen filing against him, had the following to say:

"Adrien said: “I’m not sure what he’s referring to. I haven’t been rude to anybody.” (In the last five minutes)

The black judge said he possibly drew opposition because of his race and noted only 11 of Miami-Dade’s 123 judges are black.

“We come from humble means,” he said. “We’re going to be targeted because of our race.”

What's this "we" shit? Now the guy is talking aobut himself in the "royal we".

What planet is ths guy on? Whatever he is having for breafast, I want some. Is he so out of touch with reality that he really does not know what people think about him, including his fellow black judges?

Say whatever you will about Swartz or Ruiz-Cohen, but neither are racists. What they are doing is a true public service.

CAPTAIN said...

THE CAPTAIN REPORTS:

CAMPAIGN UPDATE ....

Last week I reported that Jeffrey Swartz was about to file against Peter Adrien. This week he did.

Now the race just got a little bit more crowded. Seems that Macho Camacho Adrien is attracting many more to Group 45.

Samatha Ruiz Cohen has now filed to run in the same Group 45. She, of the law firm Bennett Aiello Cohen & Fried, has been a member of The Florida Bar since 1992.

Ms. Cohen was an ASA for 12years where she was a senior training attorney and also handled homicide cases.

Captain Out ...

Anonymous said...

Rumour has it the following will be filing in Group 45 against Judge Peter Adrien Camacho:

The Q
Jonathan Blecher
Rumpole
The Captain
Jason Wandner
Don Horn
Alex "Dees eees Bullsheeeeet" Michaels

Real Fake Judical Race Handicapper said...

Very interesting three way race. I feel compelled to handicap it since we have not had any Rumpole football picks since February.

Swartz: White Jewish male. No "wow" factor here as white jewish male judges are so 80's. Been there, done that with Swartz already. He's been with a civil firm in Kendall the last few years and not rubbing elbows on Flagler Street or taking long lunches at La Loggia and doesnt have Mercedes Bach on his elbow this time. However, maybe he can have a Nixon like comeback. Early odds: 7/1

Ruiz-Cohen: Aha, white hispanic female with jewish name. Perfect combination and we've seen the bench infused with hispanic females in the past few years. The hyphenated name has to be worth 10,000 votes. But many years out of the SAO makes everyone scratch their heads wondering who she was. First race is tough, and she could have some fund raising issues. Early odds: 7/2

Adrien: Aha, now a true wildcard. Adrien pulled the rug out from everyone with a hyphenated name of his own, adding the Camacho to his name, which was his mother's maiden name. The Cuban American Bar Assn was up in arms and vowed revenge. While there is a definite incumbent's advantage, that disappears when you draw two opponents. Cant see too much dinero rolling into the campaign account with the criminal bar holding onto thier wallets tightly and the civil side not really knowing him that well. But you never know, Adrien could run as: Peter Camacho-Adrien-Fong-Berkowitz-O'Malley-Calamari-Obama- Tiger.
That way he gets the Hispanic,Asian, Jewish, Irish, Italian, Obama and Miccosukee votes all in one fell swoop.

Forget it, I convinced myself. Adrien reigns in 2010.

I'm putting 100 Farinas on it at the 73 West Flagler sportsbook.

Anonymous said...

Water coolers need filling in the REG and some people need firing, so guess who is filing to run for Judge. You got it, the "Don".

Anonymous said...

A Former Assistant State Attorney said:

Captain,

You forgot to mention that, despite being "of counsel" to her husband's firm, the only job Samantha has had, while being a stay at home Mom for several years, is the occasional, once a week class in Political Science she has been teaching at FAU.

Anonymous said...

that ben daniel is alive and well and kicking ass

Anonymous said...

Way to go Roy. AUSA's lose again. Apparently being a corrupt office doesn't pay.

CAPTAIN said...

THE CAPTAIN REPORTS:

BREAKING NEWS .....

Helio Acquitted - now who wins the bet Rump?

Cap Out ...

Anonymous said...

Maybe Don will join the AUSA office. It's an office full of corrupt losers, and, if the shoe fits....

Anonymous said...

If Adrien is drawing opposition, it is because of the 123 judges in Miami-Dade County (I am assuming this number is correct), he is hands-down the most inept of all of them. His skin color has nothing to do with the challenges to him, as it should not.

Anonymous said...

12:47's comment on Samantha Ruiz-Cohen made me chuckle. I remember Sam as a prosecutor and administrator. She is bright, talented and fair. She also has a great demeanor. She'd be a fantastic judge. This race is a no-brainer.

BTDT

PS----anyone who begins a sentence involving a mother with "all she's done" either has no kids or is utterly clueless. Sam's teaching and part-time legal work reflect her dedication in ways this person obviously doesn't understand. Never underestimate the incredible amount of work it takes to be a good mother.

PS2---Sam is Jewish (she converted). She is very committed and has been for a very long time(ask anyone who knows her). Any suggestion that she's taking advantage of her married name or fronting to obtain the Jewish vote is misplaced.

Anonymous said...

How come you haven't posted the story about the most recent corrupt police officer being arrested?????
http://www.miamiherald.com/news/breaking-news/story/1004561.html

Anonymous said...

Bring back the Sunday DUI power rankings.

Anonymous said...

Let me see if I've got this right: our choice in this three way race is between the total incompetent who now holods the job, a blowhard who was medicocre at best, and a woman who has been out of the law business for years? What a county!

Anonymous said...

sam ruiz cohen is by far the most qualified of that troika. schwartz is an arrogant blowhard who was despised by all not totally incompetant. adrien is universally regarded as the worst judge in county.

Ruiz cohen was an expereinced ASA who tried lots of cases for many years.

she is the the choice hands down

Anonymous said...

BTDT or should I say Judge ESV,

Re-read the comments I posted. You might note that the "all she has done" was not addressed to rasing her children, but was to enlighten those who read this blog that Ms. Ruiz-Cohen has not practiced law in years.

Anonymous said...

Its Mss Ruiz Cohen traying to imitate her former chief and friend Caty Fernandez Rundle ?
They both look and talk very similar

Anonymous said...

As a question---its Samantha Ruiz Cohen runing with the conections and money of her parents? We just see her in restaurants-Radio stations -social events and any other reunion in Miami.It's like any group, institution or association in the city its backing her---why so?