Monday, April 13, 2009


In light of our favourite federal bloggers stunning win in federal court, and the simultaneous collapse of the career of at least three prosecutors who had their fingers in the case, the question some people are posing is whether there will be repercussions for Mr. Markus in his representation of future clients? Will the prosecutor's office  take this colossal embarrasment  out on his future clients?

Here is the first comment we received:

Here's my question. 
1. Was it a good idea at the end of the day for Markus to do the right thing and go after these prosecutors and make them pay for the wrongs they did?

2. Would another defense attorney have just ignored some of the facts and not make waves?
What I am getting at is, will Markus be a marked man and find it harder to get plea deals at the AUSA office based on such a high profile slam of that very office?
Would another defense lawyer have gone the extra few miles or would they have just look towards the future and not made any waves?
I ponder this question because it speaks volumes for the guts it takes to be a true defendar of the law and what it represents. 
If I was facing federal criminal charges would I now want Markus or is he damaged goods for royaly upsetting the AUSA office like no other could?

Rumpole says:  the answer is simple: an attorney does not owe a duty to future clients. You owe a duty to your current client to do your level best, as Janet Reno would say, and you have an affirmative obligation not to diminish your performance to your client one iota in the belief that may benefit other current clients or future clients. 

Is it really all
that different in State Court?

Rumpole says:  Yes. If for this simple reason- if you recall in the Markus saga, just before trial started he and his co-counsel met with the prosecutors' supervisors to discuss their concerns that the prosecution had taken a personal and vindictive tone. True to the nature of federal bureaucrats, the supervisors did nothing. 

As much as we criticize the current SAO administration, we believe there are enough supervisors left over from the Reno administration who would not tolerate this type of behavior. 

See You In Court. 


Anonymous said...

The sad truth is that he Marcus now damaged goods. Just like Frank Quintero, If you fight hard they mark you and make it impossible for you to get anything done in the future. An irony is, I read a post where Marcus mocked the state system and titled his post, "Why I practice in Federal Court". Now you know why we like state court....

Anonymous said...

I would think that the secret taping of phone calls to a Defense attorney who is not up to his ears in criminality is so rare that the chances of ever catching the government doing it is astronomical.

I would like to think that the crown prosecutor is so unlikely to engage in illegal activity herself that she would only think highly of a lawyer who pulled a rotten apple out the office barrel.

Anonymous said...

I am curious as to how the taping incident came up during cross.

Anonymous said...

Wasn't FQ indicted and tried? The government has conceded that Markus did nothing wrong and that he shouldn't have been taped at all.

Anonymous said...

Remember Judge Terri Miller?

She is now a Broward judge.

The Sun Sentinel reported today that the JQC voluntarily dismissed its case against her. The JQC has been all over Broward judges lately (for good reason) but, walked away from her case.

I don't think they ever lost a case before.

abe laeser said...

Judge Gold has written an order accusing some lawyers of unethical conduct. I hate to think that it is true, but it certainly seems that way if his 50 page document is factually accurate.

If so, I thank Mr. Markus for revealing the facts - and exposing this issue for public scrutiny.

In spite of the snide remarks for which this Blog is infamous, the point is rather simple: We all have a duty to do justice. The individual practitioner and public defender have that obligation to the client. The public prosecutor has a duty to maintain justice - applying the rule of law.

Prosecutors should be very wary, and fully understand the impact, of the arrest in a marginal case -- one which a jury is unlikely to accept. The clear result is that lives are destroyed in an effort to prove innocence.

That is NEVER the job of government. There are enough guilty persons so that the marginal case, the weak evidence, the wrong-headed decision must always be pointed out as an act of injustice. Nothing is accomplished, except public ridicule, by the filing or maintaning a case when the evidence should not result in a conviction.

At the State level, I know that every case can get review by a Chief Assistant (and others on the chain of command), before a final decision is made. That may not be a perfect system, but it does require several persons to be in agreement that the case is sufficient before trial.

We must all hope that they always will act responsibly. After all, that is their sworn duty.

Anonymous said...

Damaged goods? That comment makes me sick to my stomach. If everybody held themselves to the same high standards as does Markus, "they" couldn't get away with half of the BS they try and pull, anyway. The answer is never less Markus, the answer is almost always more. If everybody tried the s**t outta their cases like we're supposed to, "they" would be scared of us, not vice versa.

Anonymous said...

The only "seismic shift" I see is a negative one in the career of multiple prosecutors. Karma.

Anonymous said...

That Miller JQC case was weak. They were knocking her around for saying she was a Judge or something like that. Well she was a Judge just in Miami Dade and not at the time she ran for the seat she now holds. So it was not like some candiates who were black clothes in Campaign photos to to make the public think of he/she is a Judge when they are not.

Weak case and should have never been filed.

Anonymous said...

Marcus is afraid to speak out against what they did to him on his own blog. He even changed his policy for comments in order to promote, "accountability."

Anonymous said...

Sisselma, stop being an ass.

They cannot wipe without getting approval. Obviously someone reviews evry case that gets to trial.

Anonymous said...

The JQC knew that Mike Catalano was going to kick their butts.

Curious George said...

What court does Anthony Hevia practice in?

What is he? A? B? C? Specialized unit?

Anonymous said...

Anthony Hevia is in juvenile

Anonymous said...

Sisselman is absolutely right. They can't nolle pross without getting 3 approvals sure, but that doesn't mean the converse is true--that they can't go to trial without approval. The ASA's I know (I'm an APD so I've known a lot on a daily basis) have a much harder time convincing their superiors a case should be dumped or plead to a gift than convincing them it should be tried. I have NEVER heard of a line ASA who thought a case deserved more being undercut by the brass. The presumption is if the case is filed, the D is guilty. The presumption at filing is if the cop decided the arrest was good, we ought to file the case. Can you overcome those presumptions--sure, sometimes you can--but often it's let the jury decide rather than this trial shouldn't go the jury. And so we end up with a lot of trials that can be traced back to the obviously bogus story of one witness that a cop dutifully recorded, maybe thinking somebody higher up on the chain than her would dump. And a lot of not guiltys. I'm not talking about the cases Abe Laeser handles--or used to, I guess, and that is unfortunate--I'm talking about the cases the C PD's and ASA's handle--the equivalents of the case David Markus embarrassed the feds on if the def. didn't have money.

Now, at the same time, I doubt our state atty's office would wiretap a def. atty out of vindictiveness--they don't quite have that federal belief they are God--but go to trial without a sincere belief in the def's guilt or offer a plea the ASA didn't sincerely believe was appropriate--all the time.

Former ASA said...

I agree wholeheartedly with Rumpole and Mr. Laeser. A defense attorney has two primary duties: 1) to defend his/her CURRENT clients to the best of his/her ability and 2) do so in at least an ethical, if not professional, manner. No fair prosecutor will hold it against a defense attorney for fighting hard for his/her client. Likewise, no fair prosecutor should do what the AUSAs did in Markus' case.

Even for those defense attorneys who choose to engage in questionable behavior--and like it or not, there are more than a few of you out there--there was a mantra during my days at the SAO--don't punish the defendant because his/her attorney is an asshole.

As for Mr. Sisselman's comments, while the SAO deserves much of the criticism it receives, the vast majority of ASAs conduct themselves in a higly ethical manner. While the office may have some draconian policies and trial level ASAs may need their DC's, a Chief Assistant's and KFR's notarized approval to use the restroom, let alone offer a below-guidelines plea, ASAs are reasonably well-schooled in the ethical aspects of prosecution. I cannot imagine a situation where an ASA would engage in any behavior even remotely approaching that chastized by Judge Gold. And if an ASA did so, he/she would be out of a job that very day.

Anonymous said...

I don't want to call anybody out by name because Google searches can find a lot these days and probably they've paid enough for what they did. But lets remember a former state prosecutor who lost a big case and then the job by virtue of unethical behavior. MG. I witnessed that case, and I'm sure it could have gotten dealt with behind the scenes by KFR and the immediate underlings--but it got played out in public, just like this David Markus case. Maybe Richard Sharpstein would disagree that the brass at the state would never allow their prosecutors to engage in clearly inappropriate actions. I'll tell you this--he wasn't out of a job "that day". Took some national media attention, not a natural sense of prosecutorial ethics, to accomplish that.

Anonymous said...

Dear Anonymous at 9:18:

Since I am NOT psychic, what the hell are you talking about?

Anonymous said...

the sao and the USAO are two very different animals. there is not a win at all costs attitude at sao. if anything there is too much of a "how can i dump this case and not have to go to trial" attitude at the sao. yes yes some of the career criminal policies are harsh but it is very easy to meet with a DC or other supervisor about a problem case. and a problem case isnt a 20 time felon where the state makes you a shitty offer. i am talking about cases where there are real issues of guilt or true reasons for mitigation (ie not some silly eval by merry haber).

Anonymous said...

sisselman the death squad left your office years ago what is joyce brenner playing the jedi mindtrick on you and brainwashing your ass?

Anonymous said...

9:18--if you are talking about what I think you are talking about, that case was an aberration. I know many ASAs cringed when the allegations were revealed. Also, the conduct of the state prosecutor in question, while clearly inappropriate, did not rise nearly to the level of that the AUSAs are accused of.

Anonymous said...

Will sean Cronin and his cronies get a pass as is usual for corrupt govt agents, or will justice prevail and he will lose his bar card. What can be a more serious violation than abusing power to put an innocent man in jail.

I think Cronin should get ten years.

Anonymous said...

Why do the personalities always have to get in the way of simple things.

Everyone knows that Judge Miller and Mike Catalano are real close friends. He represented her. They won. It sounds like good lawyering since the JQC never seems to lose a case.

Look as Aleman. Did she really break a rule that all judges don't break but, hey, they can always get them on conduct unbecoming of a judge.

Congratulations to Catalano, whether you like him or not, he did beat the JQC. How many of us can say we represented a judge and won?

Watch, some smart ass will say that he is just a DUI lawyer.

Anonymous said...

Judge Gold Ordered Markus to have the hearing. What do you do when the Judge asks the questions, quizzes the witnesses himself and makes findings that the Defense did not ask for? Why is that the Defense's fault? Didn't Markus tell the Judge "NO" when asked if he wanted the Judge to pursue contempt proceedings? Did anyone read this Order? The Government was bragging at a party about how they got away with it until Gilbert did the right thing and brought this to the superiors' attention. Only then did the taping issue even come out. Hasn't Markus protected all Defense attorneys here?

Anonymous said...

Brother Rumple
My point is that in many cases like dropsy and 'consentual' search we all know that the cops are lying but ASAs like to beleive that the Defendant really did drop the drugs right in front of the cop or actually , knowing that theyw ere carring, consented to a search. And what about Battery on LEOs or Resisting With Violence. Just look at the Aform for the WARD D Stamp, yet All ASAs seem to except the cops version as gospel.
D. Sisselman

Anonymous said...

D. Sisselman makes a valid point at 8:59:00 PM

Anonymous said...

FACDL needs to step up this election cycle and put up some opponents for some of the judges on the bench. Even as an experiment, if they targetted a judge and ran two candidates against him/her, then you could stand a chance to unseat the judge.
No judge wants an opponent. Imagine if they got two.