Wednesday, September 23, 2009

3rd DCA ROUNDUP-JUSTICE IS CRUMBLING EDITION

UPDATE: Why is Tom Risivy smiling? (Hint- it has nothing to do with his shoes this time)

Give up? Email the Miami FACDL President to get on his email list and find out.
hectorflores@barzeeflores.com







****see below****


Wednesday is Funday at the Third DCA.


Depraved Mind? Yup. Senior and former Chief Judge Schwartz may not necessarily know how to specifically define a "depraved mind", but like Potter Stewart ala pornography, he knows it when he sees it, and he minces no words in describing it in

Rejecting the appellant’s primary position on appeal, we conclude –

notwithstanding the very sketchy nature of the record as to the surrounding

circumstances – that the singular fact that the defendant drove a butcher knife five

and three-quarter inches into the victim’s chest, reaching his heart and causing his

death, was itself sufficient to establish the “depraved mind” element of second

degree murder, of which Bonilla was convicted after a jury trial.



No Good dead goes unpunished by the Third: As Judge Eig has found out in State v. Armenteros, in which the 3rd bounced back a plea below guidelines based on "some deal" Eig had with the defendant and not the State. Now Eig has to provide written reasons for the below guidelines plea. You know what we say: Good for you Judge Eig! We can just imagine the state standing there, arms crossed, whining "Judge you can't do that. The Chief of the assistant chiefs who supervise the chief of the chiefs says so."


Keep making deals and icing out the State Judge Eig! Good for you. The Governor appointed you because he had faith you knew more about what is best for the people who appear before you then some 25 year old who can't make a phone call without clearing it with six dozen chiefs. (Just put something in writing justifying the downward departure next time.)



Judge Murphy got reversed on a downward departure in Berry v. State, but we applaud the effort.


Wall Of Shame: Judge Adrien (no surprise there) in Taylor v. State; And Judge Miller in George v. State;



****picture of North Dade Justice Center's crumbling facade courtesy of loyal blog reader Dan Lurvey.

34 comments:

old guy said...

I have been treated badly more than once by Schwartz - so we are not friends, but I have to agree, that seems like it was an act "evincing a depraved mind". Knives do not go off by accident into someone else's heart.

Anonymous said...

Neither the "Q" for Quirantes or the "E" for Elortegui are involved in either of this high powered litigation.

Greater legal talent you cannot find.

Yawn.

Anonymous said...

Actually in the Eig case, it said reversed to enter a guidelines sentence or withdraw the plea. Didn't say reversed for Eig to enter written findings.

I know you're optimistic to see judges cut the state below the knees, but hold your horses there honcho.

You have an ax to grind with young ASAs needing to speak to 6 different chiefs, but there are reasonable ASA's the defense is trying to strongarm into sweeter deals than their clients deserve as well.

Anonymous said...

Any truth to the rumor that Judge Eig has been reassigned and will begin presiding over bond hearings in the near future?

Former ASA said...

The only reason the State appeals downward departure sentences is because the pit prosecutor brings it to the attention of a chief. Just mutter a half-assed "over state's objection," and write a memo about how strenuously you objected.

Most downward departure sentences are on C level career criminal cases, of which there are too many anyway. Judges rarely go below guidelines on serious violent felonies involving victims. So what do you care if Judge So-and-So gave that GORT 366 and a criminal order of restitution for stealing the copper pipes out of a house that's been in foreclosure for 3 years? Let it go. By the time that dreaded red file reaches a chief's desk, you'll be a B and it will be too late to file that appeal.

I always found it best to stay away from the career criminal chiefs. I was afraid if I brought them a case where the judge had imposed a downward departure sentence, I would somehow get in trouble for not objecting hard enough.

Anonymous said...

uh no Rumpole the governor actually appointed eig becuase he tried to take a child from his father becuase his father lived in a country whose government we dont like.

his judgment or legal accomplishments didnt have a damn thing to do with his getting appointed

Anonymous said...

Now what did I do with that darn "I Hate Rumpole" button?

Another Former ASA said...

I agree with you that a lot of the C level career criminal cases are shit cases that should be pled out to below guidelines.

I disagree as to your analysis of the only reason such cases are appealed is because the pit prosecutor brought it to the attention of the Highnesses in Career Criminal. During my days at the SAO, pit prosecutors were REQUIRED to do so. Stating "over State objection" on the record is not enough. I myself got seriously reamed out by a certain Chief ASA, who happens to be one of KFR's favorites, for failing to appeal a downward departure on a red file.

Anonymous said...

10:42 has it 100% right. Avoid CC chiefs at all costs.

Being a good prosecutor in Miami means: (1)having good judgment; and (2) keeping your cases out of the hands of the dolts who don't.

fake country dave said...

Rumpole dude- I'm on the bandwagon: Cash Money Ain't never gonna play out! Dude....

Anonymous said...

Funny, but I wonder if you would praise a judge's willingness to exercise his judgment if he departed upward inappropriately (just as Eig departed downward inappropriately). I highly doubt it.

CAPTAIN said...

Eig is on the short list for BH Judge.

Rumpole said...

10:12 - well you happen to be wrong and you haven't read the blog for long. What bothers me- what infuriates me- is that a 50 or 60 year old Judge and a defense attorney who perhaps has been working in law 25 years have to kowtow to a 25 year old prosecutor 2 years out of law school to get a minimum mandatory waived.

It takes the power and discretion out of the hands of those who are supposed to be the wisest (the Judge) and puts it into the hands of the most inexperienced person (in terms of law and life) in courtroom.

I fully recognize the need at times for Judges to impose sentences above the norm in special cases.

Its clear to me that you miss the subtlety of my point- and as such I need to spell it out for you.

Got it?

Risivy fan club-Kendall chapter said...

Tom Risivy ROCKS!!!

Yet another former ASA said...

As a young, fresh out of law school grad at the SAO in the misdemeanor division, I always took the advice of my commit:

"Listen, never get a chief involved. Ever."

I tended to follow that advice and did just fine.

CAPTAIN said...

Rump, I missed that FACDL Seminar on Crawford today. Can you give us a report.

Anonymous said...

u betta recognize.
the canes are back
believe the hype

Anonymous said...

Rumpole, under your theory JT would be more qualified than a 25 yr old ASA. The point is that JT is not the only insane dufus with 20 plus years being a member of the Fla Bar.

I have been impressed by some older and younger members of the bar. I have also been stunned at how some act and behave like JT on a regular basis.

You Judge each person on the merits of past conduct and not with a wide brush across all young bar members.

The law evolves and young or old you need to keep up on the latest case law and changes the legislators have made.

Rumpole, you are just a old fart!

Anonymous said...

Dan Lurvey-lawyer, photographer and youtube rock star.

Anonymous said...

Sit in Eig's court for a few hours and you will see that he has no business being a judge. He only got the job because he grandstanded in the Elian Gonzalez case.....the Cuban kid case.

Anonymous said...

I found it! I found it! It was right next to my "I Hate Rumpole" tee shirt and matching cap.

Rumpole said...

3:45 let me put this in terms you can understand (by the way- who helps you with the computer?):

scenario one: You plead guilty to a felony theft case. You stole money from your employer to pay for your child's surgery. The guidelines are discretionary. Who do you want sentencing you- a 25 year old or a 55 year old who has raised a family and been a lawyer/judge for as long as the 25 year old has been alive?

Scenario two: you need emergency surgery- they wheel you into the ER and there are two doctors- one just out of med school with top training but has been doing this 6 months and you will be her third surgery in this type of case she has ever done, or the 55 year old doctor who taught the younger one and has been saving people with this surgery for 25 years?

Anybody can excel in any situation (except apparently for you when required to think rationally) - but I will choose the person with life experience if that is the ONLY criteria I have to go on at any given time.

Rumpole said...

Crawford= live testimony. When in doubt about a piece of evidence not supported by live testimony- object.

Want an update on DUIs as well?

CAPTAIN said...

nope think i might attend that seminar myself

Yet Another Former ASA said...

Depends on who you are, whether or not you could pass under the radar or not.

Some fellow ASA's snitch on other ASA's when they don't do what they're supposed to do. So day or two later, a CC Chief is emailing you and wondering why you haven't come see them, they heard from so and so that.

If a Division Chief is sitting in court, yet another problem, eyes and ears problem, right?

But if you were the one that many never screwed with, you hid your bombs and then tried to slip it through at disposition time when it was time to get that final paycheck cashing out and it worked out.

Meanwhile others are nitpicked to death and their paperwork is held up.

Many in the SAO are hip to the game and know all of the tricks, people want to play letting the files get pled out.

Personally, I think if the judge wanted to do it, let them do it, but unfortunately the people making the biggest stink about approvals seldom have to be the ones in court that the judge is upset at now?

Anonymous said...

Rumpole, you too bit low life idiot. Your Scenario two: will never happen because any moron with half the brain of JT knows that new surgens work under more experienced surgens for at least 6 to 10 years before going solo.

I would prefer the surgen who has never been sued for malpractice and is board certified in the field of medicine that I need surgery.

As with Attorneys, I would prefer the board certified trial lawyer over a non-certified one**. A board certified family lawyer over a non-certified one. Blah, blah, blah.

**Now I take exception to an Attorney who has been investigated, tried and convicted by the Florida Bar. I may want that lawyer because he is not afraid to push the envelope on behalf of the client vs one who tip toes around the Court house.

As with a Judge I prefer one who can put aside prejudices of every kind and Judge the case on it's merits or who has not been investigated by the JQC, over someone like Judge Aleman, Judge Rothenberg or fromer Judge Sepe. Blah, blah, blah...

In your case being a certified blogger with mental illness does not count. Yes Rumpole those business cards will need to be reprinted ASAP!

Anonymous said...

Okay Rump..........show me one post you've written supporting a judge who used his or her judgment to depart upward.

Calling your bluff

Anonymous said...

Rumpole
There are NO upward departures. They went bye-bye w/ the Punishment Code. Judges can go to the max statutory/Habitual, HVO, etc. sentence for NO reason or even Higher if the Defendant scores higher. Only going Below the presumed sentence by the code requires a written reason.
DS

Anonymous said...

why not just make eig the judge in taliban held territory in afghanistan. he probably shares thier worldview

Anonymous said...

7:35 nailed it.

The problem is that career criminal chiefs are not in-court prosecutors. As of now, there are 3 - two of whom almost never try cases. One tries about one case per year.

These 3 "prosecutors" (substitute "manager") work from about 10 am to 4 pm, take 2 hour lunches, and are never around when you actually need them. When you do go to them, they tear your file apart, quiz you about the mundane details of the case (I heard one CC chief asked a C ASA what color the stolen car was - as if you don't have 350 other cases to deal with), and criticize all the work you haven't done, documents you haven't ordered, witnesses you haven't spoken to. It's really a painful process, and in the end, they approve something like 10 years as an HVO followed b 5 years probation as an HVO - and the charge is a car burglary or something.

A very wise supervisor who is no longer with the office once told me that being a C is the equivalent of being an ER doctor. You just stop the bleeding. That's all. You're not there to do complex surgery. You don't have the time.

C cases should move along swiftly. Every once in a while, there are serious C cases where tough pleas are appropriate. But remember - these cases are filed by felony screening ASAs - people who couldn't hack it in division so they work 4 days a week doing ten minute pre-files. They too don't have to be before the judge.

The C position is the toughest by far. You have little discretion, too many people telling you what to do, and in the end, it all comes down to you. YOU'RE the one the judge is going to hate. YOU'RE the one who has to look a jury of 6 in the eyes and tell them why they should find that burglar guilty even though there are no prints and the victim saw a "Hispanic male in a white T-shirt" running out her side yard as she walked in with the groceries.

The problem is even bigger than just closing out cases. It's about the reputation of the justice system. Only strong cases should go to trial. If not, plea it out. I've never been a believer that a not guilty by a jury was better than a weak plea by the state. Better to get something than nothing.

The career criminal chiefs have the luxury of not having to deal with the consequences of their decision making. That unit and its policies are a major factor in both the low morale in that office, and the reason why the typical Miami ASA lasts 17 months.

Another Former ASA said...

Yet another former ASA has a very valid point, but it requires a little more explanation. There are certain ASAs who the brass likes and nobody will fuck with, regardless of their competence. Most of these are easily recognizable by the brown marks on their face and the odor of shit that faintly oozes when you walk near them.

But there are other ASAs--admittedly, some are major fuckups but many are good, reasonable lawyers who aren't afraid to stand up to some idiot "Chief"--who can do no right, and who are watched like hawks. They are called to account for every minor screwup, even if it is not their fault. I have seen ASAs stand in for colleagues in court and then get reamed out because the truly responsible ASA didn't do their job. I should know, it happened to me.

Probably the most demoralizing thing about the SAO--a place that has absolutely no morale--was seeing nincompoops get promoted and lavished with praise while seeing damn good attorneys banished to FSU or some other shitty assignment.

Baddest current?former? ASA of them all said...

The problem is C attorneys (with few exceptions) dont do the work on the front end when they are first assigned to a division. You have to work a few weekends, organize your files and figure out which ones you should talk to your DC about nolle prosse at the next court setting and which ones you should set for pretial conferences and really prep for trial. Always assume your predecessor is a moron, because odds are, she is. If you separate the wheat from the chaff and take your solid cases to trial, you impress your DC, your judge, and any of those special unit dorts that sit through your calendar and see you have your shit together and walk around like you have a pair. Once that happens you will find yourself with greater reign and respect in the office. If you sit on your ass like most C's and complain about how you have 400 cases and hate your judge and your DC is out to get you, then you reap what you sow. Get off your ass and work and you'll have a whole lot less to bitch about. With few exceptions, the people that are micromanaged at SAO deserve it. Stop crying like schoolgirls about "morale" being so low. Go out and win a meaningful trial or vindicate a victim or next of kin if you want a shot in the arm. Theres no better feeling than knowing you helped achieve a just result by doing the right thing. Sorry to be so blunt, but the truth hurts sometimes.

Anonymous said...

What a bunch of cry babies who are former ASA's. When I worked for the office, the people who complained the most were the ones who worked the least. I did what I was told, prepared my cases, and never was treated badly. If you didn't abide by the policies of the SAO you got in trouble. Yeah, so what? It's the same at any other law firm. In fact, in private practice we have to take a lot more crap from partners than I ever did at the SAO. Don't blame the SAO if you couldn't cut it as a prosecutor. If you wanted to make a lot of money, then you shouldn't have gone there in the first place.

Anonymous said...

I have been in Eig's court at least 15 times. I have found him to be thoughtful, prepared, polite, and one who hands down good rulings.
What is it that he supposedly does wrong?