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

Thursday, May 28, 2009

3rd DCA ROUNDUP

Better late than never, considering the volume of Supreme Court cases we have been reading lately:

Brown v. State: Judge Mark King Leban joins the HALL OF FAME (as opposed to the hall of shame) for conducting an evidentiary hearing on a rule 3 motion, and issuing a decision based on facts that the record supports. Take a bow Judge Leban, well done. (And dare we say dozens of your colleagues hanging in the hall of shame should take note of your thoroughness.) 


Fleuirmond v. State (or- how not to prosecute a case if you  want a snowball's chance in hell of having the conviction hold up on appeal.)

The Defendant was charged with drug trafficking. The court granted the defense's motion in limine to preclude the witnesses from testifying that the case occurred in a "high crime area." But you know these cops and prosecutors. They just love that "high crime area" argument. Totally irrelevant, but it's got "jury appeal". 

As the court of appeals wrote: 

The prosecutor stated that she had so instructed some of the 

officers, but was not sure if all of the officers had been so instructed.  The judge 

then stated, “I don’t want anything, any testimony about high crime area, any 

previous contact with anybody.” The prosecutor replied, “Surely, Judge. 

Understood.” 

 Incredibly, minutes later, one of the members of the police surveillance team 

gratuitously interjected the exact type of testimony that the motion in limine had 

tried to prevent. 


Say what you want about this ASA, but this silver tongued devil was not caught short when the court inquired about why the motion in limine had just been violated:

The prosecutor admitted that she had not 

complied with the court’s order.  When asked why she had disobeyed the court’s 

order, the prosecutor responded, “Judge, I mean, I absolutely -- the only -- you are 

right.”  


Talk about oral advocacy. 


Anyway, this ASA was not done, because she then resorted to imaging facts that she then argued in opening and closing argument. This is generally considered a "no-no" except in Texas and certain parts of Louisiana:


First, the prosecutor told the jury in opening statement that when police 

officers went into the house that had been under surveillance, they found 

Fleurimond attempting to flush drugs down the toilet.  The only place the 

defendant was flushing drugs down any toilet was in the prosecutor’s imagination 

because, during trial, the State presented no such evidence. During closing 

argument, the prosecutor told the jury: 

Now, this is all being radioed. This is not happening in 

split seconds. It’s happening quickly, but time is elapsing. 

And then the police go in and they find Mr. Fleurimond 

in the bathroom flushing the drugs down the toilet. 


Not surprisingly, the defendant will be receiving a new trial. 



SR v. State. A good case explaining the standard for a judgment of acquittal in self defense cases. Basically, when the defense proffers a self defense claim, the state's proof must rebut beyond a reasonable doubt the defendant's claim that s/he acted in self defense. If you have a self defense case going, read this one and print it out for the file. 


State v. Williams. Judge Rothenberg reversed Judge Alan Schwartz who was sitting as a trial judge and who granted an unsworn "sworn" motion to dismiss in which is was alleged that the item used to hit the victim ( a firearm) was not a deadly weapon. Note to Judge Schwartz:  sworn motions must be sworn to and firearms are, um...deadly weapons pretty much by definition. 




32 comments:

Twitter snitch said...

Rumpola- If your readers are not on Twitter, here's what they missed last night:

Miami Super Lawyer Brian Tannebaum admitting that he eats Kangaroo and drinks cheap wine.

Kangaroo???? That's right.

Whatsamatta Brian: shrimp on the barbie not good enough for ya?

G-day mate.

Anonymous said...

And the name of the prosecutor was ..............?

Anonymous said...

So who was the ass- I mean asa in Fleurimond? The 3rd left that out. Do we really have to go look this shiite up ourselves? What's a gossip blog for?

Anonymous said...

Says the State Prosecutrix, was some chickidie named Ivette Gonzales.

Very crafty one, this Ms. Gonzales.

A fine example of the crop of prosecutors at Fernandle's office.

What is it with these prosecutors? Ivette Gonzales? Mathew Baldwin from the other week in that other trafficking case.

Looks like the War on Drugs at the SAO means win at any costs.

Anonymous said...

What? Nothing about Adrien's billion-dollar vote-buying spree???

Anonymous said...

My dealings with Ms. Gonzales have always been professional. She must have been caught up in the moment.

sin city regular said...

This night at Coconuts Comedy Club our Alex Michaels is rumored to be sneaking on to tune up his set before heading off to Vegas where he will be appearing at the Hard Rock all week.

A contingent of Justice Building traffic regulars are rumored to be heading to Vegas to cheer our boy on, including Freddy The Penguin Moldovan and Ray "Boy Wonder" Rodriguez. The Mad Russian Vic may jet out for a day, as well as the not so big man Bob Baker.

See ya in sin city.

Anonymous said...

ATTENTION - all those seeking a U.S. District Court Judgeship?

There are only four applicants for this position. This is going to be the fewest applicants ever for a vacant seat. If you ever thought about a great job which lasts a lifetime, apply ASAP. Don't let this spot go to a candidate who is a mediocre circuit or county judge or lawyer...

Anonymous said...

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
Who said the above?
A. Barbara Areces
B. Christina Miranda
C. Patricia Marino-Gonzalez-Rodriguez-Estaban-deJesus
D. Sonia Sotomoyer

Fake Alex Michaels said...

I vill not be in Vegas. I too busy ripping heads off bears to prepare for big trial.

Vhat is dees crap on the blog? Dees eeees bullsheeeeeeeeeeet!

Anonymous said...

The problem with this case was not Ivette Gonzalez. I have known her for years and she is a talented and incredibly ethical prosecutor. I am positive she instructed her officers on the motion in limine.

The problem is Detective Gayle, of the Crime Suppression Unit. Desreen Gayle, of the Miami Police Department, is one of the rudest and most unprofessional police officers out there. She is pompous, lazy, and testifies with attitude you'd only find in the clerk's office. She is the reason this case got reversed, not Ivette.

fake ben hogan said...

If there's a better golfer then Steve Stricker, I've never seen him (excluding Fred Funk of course.)

Anonymous said...

Word just reaching us that a REGJB regular hit a 2.4 million jackpot at AC and followed that up with a 126K cash at a poker tourney.

More on this later.

Can confirm Brian T eats Kangaroo. Many times. Hop hop hop poor little joey away from Brian before he eats you.

Anonymous said...

Rump - you know these things, and this has bothered me for awhile. Who really was the better Admiral at Midway, Flecher or Nagumo?

And just why was Fletcher in command again? Where was that other guy people liked so much? Was this like a Patten thing in D-Day where he was on the outs? What gives?
You know. Give it up, bro.

Anonymous said...

district court seat has no applicants because it is a lock. mary barzee will get it and will be so pro-defense that the usao wont know what to do.

i dont want to hear emails defending her from all those former asa's who are now defense attorneys saying how great she was ie jordan lewin and dore. you all whined like little bitches when you were asa's and in front of her

Anonymous said...

True or false: The PDs have a new lawyer named Phineas who is tearing up the courthouse by day, and female ASA's, court reporters, female cops, the odd hot clerk and even a Judge, by night?

Rumpole said...

Let's clear a few things up first: The "other guy" I think you're referring to was Admiral Halsey. He had the shingles and was shorebound in a Hospital. He recommended Flecher. Admiral Frank Jack Flecher was the nephew of USN Admiral Frank Friday Flecher.

At Midway Halsey turned his Task Force 16 over to the command of Flecher, who commanded TF 17. (Note that Halsey had Nimitz appoint Admiral Ray Spruance as the direct commander of his task force. Spruance had no carrier experience- he commanded carriers, but he was a hell of a fighter and Halsey knew it, and Spruance kept all of Halsey's staff, who knew how to run things. Spruance's nephew also married Halsey's daughter for what that's worth.)

With Flecher in command, TF 17 fought and won the battle of Coral Sea in which he lost the Lexington and the Yorktown was crippled, but his guys sunk the Shono, and damaged the Shokaku- which was unavailable at Midway a month later.

Flecher and TF 17 handed the Japanese their first "loss" at Coral Sea"- in that they failed to achieve their objective and lost a carrier.

Rumpole said...

OK Midway.
The thing to understand is that Flecher was "japanese-zen" like in his use of planes and carriers. Plus since the American's occupied Midway, it's airbase was like an unsinkable fourth carrier. Add to that the increased range of US search planes, Flecher knew what to do. He let the Japanese strike Midway first. After all, it could not sink. He then countered with vicious air assaults.

Back to Spruance/Halsey. TF 16 had the lead carriers- Hornet and Enterprise. Flecher is behind on the Yorktown which was damaged from the Coral Sea Battle.

This is a see-saw battle- The Americans have the edge because they found Nagumo's carriers first.

Upon finding the Japanese carriers Flecher sends off a dive bomber group that loses their escorts and go in "naked". They are massacred.

Nagumo prepares to counter-attack. But Flecher has a second group of diver bombers escorted by US fighters-Wildcats.

The Japanese Zeros prepare to attack the dive bombers but they have a weakness- they are fragile- whereas the US fighters are heavily armoured.

Enter US Fighter commander Jimmy Thatch. He knows the weakness of the Zero and develops the "Thatch weave"- where the US fighters pair off into 2's- The Zero's take the bait and chase one fighter - the two US fighters weave until the second Hellcat gets behind the Zero and within minutes the "Thatch Weave" takes several Zeros out of the sky. With the fighter cover drawn off and being shot down, the Japanese carriers are unprotected.

Rumpole said...

Here comes Flecher and Spruance's second wave of US Dauntless Dive Bombers, and this time things are vastly different.

The Nakaga is hit. A minute later the Soryu is hit.
The Akagi (Nagumo's ship) turns tail along with the 4th Japanese Carrier- but the US Dauntless Dive Bombers are relentless.

US Ace Dive Bomber Pilot Dick Best takes off after Nagumo's carrier with two wing men. All three planes attack. Best puts one bomb right into the heart of the Carrier. Total destruction!!! The bomb hits the hanger loaded with planes and fuel.

With one Carrier left- the Hiryu, Nagumo does not retreat but strikes. He finds the Yorktown and Flecther and attacks. The Big Y is hit three times. Flecher's crew fights heroically and actually saves the ship.(for now)

Nagumo now looks for the other two Carriers. But his options are limited. He has few planes left.

By a fluke, the Japanese torpedo bombers that Nagumo launches find the Yorktown that Nagumo thinks he sunk.

The Japanese attack led by their ace- and just as they start their attack here comes US Ace Jimmy Thatch, who attacks. But the Japanese put two torpedos into the Yorktown which is now dead in the water. But you must understand that Nagumo thinks he hit a second Carrier. He cannot believe the carrier was the Yorktown because the sailors had put out the fires and put her underway so fast. This miscalculation by Nagumo is critical.

Flecher moves off the Yorktown, and Spruance has two Carriers undamaged. But Flecher launches a group of scout planes from Yorktown before they abandon ship. They find the Hiru. And once again Nagumo is caught off guard by a US attack. As US Dive bombers attack, the Japanese pilots are eating dinner. 4 bombs hit the last Japanese carrier. 4 Japanese carriers have now been lost in the battle of midway (4 of the 6 they had). The US lost the Yorktown but not before the Big Y played an enormous role in the battle.
Her crew's ability to put out the fires and get the carrier underway after being hit three times played a crucial if unintended role. When struck a second time, the Japanese never believed for a second it was the same carrier. Believing they had sunk 2 US carriers, they let their guard down and lost their last carrier.

Nagumo also lost 275 planes and several hundred support personnel. The battle is a total disaster for the Japanese and never again will they yield an offensive naval fleet.

Now to answer your question: Flecher was the better Admiral. Nagumo was following a strict Japanese battle plan that left little room for flexibility. Flecher was flexible and several times his examples of thinking outside of the box caught Nagumo and his carriers and planes out of position.

Give Nagumo his due. Having lost three carriers, the safe move was to retreat. But he struck back and hard and but for the amazing professionalism of the Yorktown's crew, the battle may have been different.

In the final analysis the Japanese were cocky. They could have picked several areas to have a major battle with the US. But they picked Midway, which gave Flecher several tactical advantages that he seized, and which the Japanese ignored.

Thanks for asking. This was fun.

Rumpole said...

that comment at 9:18 as to Spruance should read " he commanded cruisers".

Anonymous said...

All of these arguments on behalf of the A.S.A. seem to lay blame on reasons other than the A.S.A. including calling out the police officers.

I'm sure the officers deserve blame as well. But what the folks sticking up for this A.S.A. seem to gloss over, is that:

1. This A.S.A. argued in closing, the fact that this was next to a school to try to sway the jury based on emotion, rather than the facts, when the school issue was no longer relevant since she failed to prove possession with intent within a 1000 feet of a school at the JOA level. She repeated this inflammatory statement even after the objection was sustained?

2. She argued facts not in evidence as if they were in evidence - some flushing of drugs down the toilet which there was zero evidence of.

That Detective Gayle and her team are incompetent is obvious. That doesn't necessarily answer the question why this A.S.A. couldn't refrain from trying to put inflammatory irrelevant facts in front of the jury and refrain from arguing facts conjured out of her imagination?

(I am likewise guessing, she never interviewed this witness before trial to see how good of a witness this Detective would make on the stand? Perhaps this case would have been appropriate for a waiver, if she had?)

Anonymous said...

Admiral Halsey Notified Me
He Had To Have A Berth Or He Couldn't Get To Sea
I Had Another Look And I Had A Cup Of Tea And Butter Pie

(The Butter Wouldn't Melt So I Put It In The Pie)
Hand Across The Water (Water)
Heads Across The Sky
Hand Across The Water (Water)
Heads Across The Sky

Anonymous said...

I think Rumpole is Lenny Glick who, like Manny Crespo, has a passion for the battles in the Pacific during World War II.

Sherlock Holmes said...

Assuming Rumpole is one person, he is either Scott Fingerhut or Dan Lurvey. But the more and more I read this blog, I think "Rumpole" is several people. Or maybe Rumpole just has multiple-personality disorder.

Rumpole said...

Without confirming or denying anything, I will admit that our dear departed friend and colleague Manny Crespo was on my mind as I was writing about Midway.

But what you should know is that in another lifetime I authored several papers on the decision making process of US and Japanese Naval Commanders in a Game Theory context- the most fascinating and often analyzed being the Battle of Leyte Gulf.

These Naval engagements have become the last "incomplete information" decisions that a Naval Commander would ever have to make before entering a large engagement.

The advent of better radar as well as satellite imagery has removed the incomplete information scenario in the decision making matrix.

Game Theory was designed to help those in incomplete information situations make the best decisions possible.

See also, Rumpole on "Prisoners Dilemma" which might be found with a very very thorough search.

Anonymous said...

Rump
Sorry, but the history listen was not that interesting [boring]. How about kudos to Jessie Jones the greatest sax player ever at MJB. We will miss him. Go out and get his new CD. Anyone who has seen him play knows they have seen a musicial genius,I will miss the Soul Man.. he is a 'canibal' {trivia ?: which great sax play ( that influenced Jessie, was first called canibal that had his nick-name changed to a more exceptable weapon? Hint he has Miami & FAMU connections?}
D.Sisselman

Anonymous said...

The measure of a man (or woman) is how they act under pressure.

Anonymous said...

The stark situation in Pakistan’s Swat Valley, where a month-long offensive against the Taliban has displaced more than 2 million civilians, has international Red Cross officials “gravely concerned.” No running water, no electricity, no fuel and little food. Hopefully Obama will bow, and politely ask his friends in the "Moderate Taliban" to render assistance.

Anonymous said...

Saudi Arabian officials beheaded and then publicly displayed the body of a convicted killer in Riyadh on Friday, an act that prompted a stiff denunciation by a leading human rights monitor.

The Saudi Interior Ministry said Ahmed Al-Shamlani Al-Anzi was sentenced to death and then "crucifixion" -- having his body displayed in public -- for the kidnapping and killing of an 11-year-old boy and for the killing of the boy's father, according to the official Saudi Press Agency.

Amnesty International issued a statement deploring the punishment, with the group's Hassiba Hadj Sahraoui saying in a statement it is "horrific" that beheadings and crucifixions "still happen."

The Saudis reminded Amnesty International that they have the oil.

H.R. Twitter Snitch Club Fan #1 said...

Your fans demand you start a blog- Twitter Snitch Club

What's the word Big Bird with your twitter pals?

Anonymous said...

who is this phineas guy banging?

Anonymous said...

Glick is too right wing to be HR