Monday, October 26, 2009


David O Markus broke the good news. 11TH Circuit upholds Judge Cooke's dismissal of one count against Ben Keuhene.  The opinion is here. Lets hope this gives the prosecution the cover it needs to dismiss the rest of the charges 

Our Judges at work and play: What exactly has caused this dustup of emails and internecine squabbling and cackling?

Here is part of the Judge Cueto email that started it all:

On Thursday, October 2, 2009, the Chief Judge informed some members of the Criminal Division that he was retroactively putting into effect a merged seniority list of county and circuit judges for purposes of division assignments. (I know that many of you have not heard about this.) The present chief judge related that he was correcting what he felt was a wrong committed by Judge Farina by not implementing the findings of a committee of judges, when Judge Farina did not merge the seniority of the county and circuit judges for purposes of division assignments. This committee met 8 or 9 years ago.

Rumpole notes: Judge Cueto was not happy with Judge Brown's decision. And it all has to do with Judge Brown assigning a coveted (??) spot in the REGJB criminal division to newly minted circuit court Judge Tony Arzola and passing over Judge Cueto. While Cueto has been a CIRCUIT judge longer than Arzola, Arzola has been a Judge (at the county court level before being elevated) longer than Cueto, and there's the rub: does seniority transfer with a promotion?

Yes folks, rather than spending time writing scholarly articles on the application of the exclusionary rule, or new developments in death penalty litigation, or the pros and cons of drug court and treatment versus prison, our Judges are consumed by a much more personal matter: who gets the better courtroom, parking spot and chambers? Sad, isn't it?

Lets examine the legal reasoning of one of our esteemed jurists.
Cueto writes:

1. Seniority rights are rights protected by law and are held personally,not collectively.
I have serious doubts that anyone can have a vote to deprive anyone else of her or his rights.

Rumpole says: kudos to Judge Cueto for identifying the individual versus collective aspect of the contretemps. However, has Judge Cueto read any case law, like Kelo v. City of New London, 545 U.S. 469 (2005)? Is he familiar with the concept of eminent domain? In our society the collective can almost always vote to deprive the individual of "rights". Sorry Judge C- while we're with you on this one philosophically (and to bolster your arguments you might want to pick up a copy of Ayn Rand's "Philosophy, Who Needs It?") there are hundreds if not thousands of examples of rights being voted away.

Cueto continues:

2. I believe that Judge Farina’s decision not to implement this revised seniority scheme based on the committee’s finding creates an estoppel of the present chief judge’s action. In fact, Judge Farina specifically decided to apply the merged seniority plan for purposes of chamber and parking assignments, but not division assignments....

3 To retroactively implement rules or laws appears to be anathema to our legal and social tradition. It especially appears so, when the rule to be implemented is based on a stale finding by a committee of people who met years ago and the judges affected were never allowed the opportunity to vote on the issue.

More from "Cueto On Rights": What Judge C is saying in so many words is "precedent sucks when it hurts your argument." Join the club Judge Cueto. Trying arguing a motion to suppress these days with the precedent of the last twenty years.

I believe that the merger of seniority of county and circuit judges is fundamentally flawed. While we are both judges, these positions are distinct constitutional offices subject to a different electoral mechanism, with different jurisdictional matter, duties, responsibilities and pay scales.

This one is easy. What Cueto is saying in so many words is this: "I'm a circuit judge and you're not. I'm more important than you." On this one, Judge Cueto has an important and vocal ally in Judge Reemberto Diaz, who "could care less what a county court judge thinks about seniority", and has said so publicly for attribution.

Cueto closes with this erroneously mixed metaphoric mishmash:

This community has had its faith and trust in its institutions sorely tested, and I do not want to bring any negative publicity to our branch of government (umm..strike ONE!) , which is still held in regard by the community (strike TWO!). It has also been suggested that a letter to Chief Justice Peggy Quince may be appropriate. However, I want to see if we can air our own laundry before we involve anyone outside of our judicial family. (Strike three. Put down the key board. You're out.)

Memo to Judge C: What you meant to write is that you want to see whether you judges can wash your own dirty laundry- instead what has occurred is what you didn't want to happen: You have aired your collectively soiled sheets, and it has been ugly.

Also, you might want to open your eyes: for better or worse that part of the community that works closest with the judiciary (if our comments are to be believed) holds you all collectively with as much esteem as George W Bush at a used car salesman convention.

Rumpole reminisces:

Harold Solomon. Tom Carney. Herb Klein. Tom Scott. Phil Knight. And perhaps the greatest of them all: Ed Cowart. It's hard to imagine those distinguished jurists engaging in this kind of petty behavior. The sad part is that most of these Judges, who couldn't hold a candle to those Judges, don't even know who those Judges were.

We received this email from a robed reader who asked us to print it but keep his/her identity a secret. *

"Rumpole, in the final analysis, this sums it all up: It's a sad day for the 11th Judicial Circuit when the Judges in Broward are laughing at us. And they are. See YOU in court. Your faithful robed reader."

*Put down your public records request Nesmith. They sent it through a personal email account.


Anonymous said...

Memo to Judge Cueto -

You need to realize that being a team player will ultimately get you what you want. Right now you appear to be a winy little school kid. You've only been a Judge for a year. Pay your dues - be a team player - and stop complaining.
Judge Hague did Arthur Hearings
for 5 plus years. You think he thought that was a plum assignment. You've been doing bond hearings for a year and you're already complaining. Someone has to do them - why not you?

You want to endear yourself to your colleagues and the chief judge - do your work and keep your mouth shut.

I'm starting to think that your
"great guy" demeanor as an ASA
while trying to become a Judge was just an act.


eyeoncolby said...

Breaking news: this just in: Judge Brown hires former Judge John Colby as neutral arbitrator to resolve seniority dispute.

Ioncolby said...

Memo update- former Judges Cristina Pererya, Marilyn Milian and Alex Ferrer to serve on panel with Colby.

fake jay white said...

And that's another Miami Dolphins.....neber mind.
I think I'll be calling in sick today. Like the Dolphins did in the second half.

Anonymous said...

Cueto on torts next?
He's a jerk and a true mental midget.

the trialmaster said...

rump, you are right on with your comment that Ed Cowart was the greatest ever to don a robe.Others who would not stoop to the level of some of the current judges, Paul Baker,Moie Tendrich,Al Sepe and Jerry Wethington, and Tam Wilson.

Anonymous said...

If the judges hadn't surrendered to the State Attorney's Office machinations against Fast Gerry, none of this would have happened. Fast Gerry did county AND circuit bond hearings in less time than what two judges do each now.

Anonymous said...

"Judges Gone Wild" Woohooo

There are alot of hot heads in our judiciary...

Dennis and Miller's donnybrook over fax machines

Cueto yelling at people from the bench

Cueto after only one year on the bench complaining about seniority

Diaz thinking he's better than County Judges

What can you expect from a circuit that has produced three celebrity Judges...

Anonymous said...

Al Sepe was the best of the lot. Not an easy place for the state to win a case against Roy Black and Jack Denaro in the 1970's.

EYEONQ said...

Rumpole is fake blecher, and vice a versa, and if you try and comprehend that statement its like looking into two mirrors facing each other. it goes on for ever and drives you crazy.

Anonymous said...

All complaining Judges:Try to get a real job see how you like it!

Fake robin faber said...

Do you have any idea how difficult my job is? The pressure I am under? The enormous importance of what I do? I hold the office of the SECOND HIGHEST elected judicial office in the State of Florida. It's no picnic. I am devoting my considerable talent to the people of the state of florida and its about time you start thanking me for the work I do, not to mention me having to deal with imprudent Circuit Court judges who shoot off their mouth when they best be keeping quiet if they know what's good for them.

Anonymous said...

Thank goodness Brown appointed Ferrer and Colby to settle out this seniority mess. They will straighten it out.

South Florida Lawyers said...

Ok Rump, you covered this way better than I did.

Speaking of Judge Cowart, I just finished a fairly new inside account of the Bundy trial (which he presided over), where the Judge told Bundy at sentencing he might have made a good lawyer:

"But you went the wrong way, partner."

Anonymous said...

Thomas petersen should be the only judge in bondcourt!!!! Send the others to a trial division

Anonymous said...

Every defense attorney in the 11th circuit owes Ben a huge debt of gratitude. He and his legal team have pursuaded the court to rule that any money used to pay for a defense attorney in a criminal case is leagally appropriate and exempts the attorney from criminal prosecution. This is huge!

Rumpole said...

SFL- except when he said it, Cowart pronounced it "pardner.." with that delightful southern twang of his. And he meant it. Cowart was somewhat taken aback by how intelligent Bundy appeared to him and the horrors of his crimes.

Anonymous said...

Judge Cueto should not even be a judge. IMO he has no right to complain about anything. His job was a gift from a political hack. The are plenty of more qualified ASA's who were passed over in order for Cueto to be selected.

I have been in front of Cueto for some bond hearings and simply put he is horrible.


more shume chatter on the civil blog- about cheesecakes no less!

real fake blecher said...

EyeonQ- you're a moron.

Old Timer said...

Just got an FACDL listserv blast from former Bar Counsel Phillip Kim. A long fact pattern and then asks for case law on a very basic stop issue.

Try WESTLAW, dipshit. Your client is paying you to do it.

Oh The Humanity! said...

You know a slice of cheesecake was long rumored to be the kindle to the eruption of the infamous memorial day Christies incident famous for involving a glass of wine, a cigar, and some airborne mashed potatoes that Shumie was right in the middle of.

Over the years the incident and resulting lawsuits and dry cleaning bills have assumed almost mythic proportions, as in later years after all the lawsuits were settled it became a badge of honor among the elite of Miami's society to claim they were at Christies that fateful and awful night when the mashed potatoes began to fly.

Of course at the time it was not so jovial, prompting Miami Circuit Court Judge Harold Solomon to seal the records until 2010 and caused him to remark never in all the cases that he handled had he ever seen such "monstrous behavior among otherwise supposedly law abiding citizens. "

So its no surprise you know who is hustling slices of cheesecake. A leopard never changes his stripes.

Anonymous said...

Uh that should read "A leopard never changes his spots."

Anonymous said...

Old Timer,

Pretty sure that Philip Kim is not a former Bar Counsel. We don't all look the same.


Anonymous said...

I have a great one, and Judge Brown has the authority. Assign Cueto to a County Court temporary seat (he will prefer a branch that is as far from his home as possible).

Yes Judge Brown can assign a Circuit Judge to a County Court position in the same way he assign's County Judges to act as Circuit Judges through administrative orders.

Now that is sure to cause Cueto to call the White House and demand relief.

Anonymous said...

I doubt very much that the judges expected their internal e-mail exchange to become the subject of public ridicule. At least, if thesecommunications may not be all that someone might wish they were, at least they didn't intend them for public consumption.
That, of course, compares with the blog entries over the weekend and today that are designed for public consumption. Lawyers do the bench and bar a disservice by making disrespectful comments about judges and teh judiciary.
Perhaps when the blog author is reviewing comments about specific judges or judges as a group, he or she should require the author's names to be disclosed. That way folks reading this stuff won't think we are all a bunch of malicious, petty, disrespectful, coardly whiners.
I too go to bond court and can understand why an unwilling judge would appeal to any argument to get out of there. Silly him to have not understood that a nine year old report would resurrect itself and cause him untold more days reading tons more of police lies and wrapping his brain around hundreds of three to five minutes legal issues. And, I might add, from my experience there at least 10 times, he does it with dignity, attention,and legal skill.
The only interesting part of this is to understand how to win a chief judgeship election. Excuse me for signing anonymous as I am certain my views, since they are not at teh level of an unhappy five year old would be considered up-sucking.
Seriously Unhappy Anonymous Upsucker

the trialmaster said...

although it was not poltically correct these days. Judge Cowart used to say when he didnt understand a legal argument,"cripple that and walk it by me slowly". no one ever complained about that comment except his wife and daughter Patty. I miss Big Ed.

Anonymous said...

9:31 states we should not be anonymous about judges because

"That way folks reading this stuff won't think we are all a bunch of malicious, petty, disrespectful, cowardly whiners."

Now wait just a minute. How dare you offend the 95% of the commenters on this blog!

barguments said...

Here's a fun one: WHat do Alan Shuminer, Brian Tannebaum, Alex Michaels, Tex Antwan (the old weather forecaster in NYC in the 1970's) and Howie Pohl have in common?

No- they all weren't at Christies during the Memorial Day incident.

They're all listed in pages 87-92 of the book Barguments.

Anonymous said...

Old timer,

part of the facdl list serve is for the open exchange of information. Maybe your too old to practice in the "new" age. Maybe it's time to hang it up?!

And Phil wasn't a bar counsel. Nice comment though prick

Anonymous said...

As Rumpole is occupied looking for the one-liner, the smack down, the bon mot, he neglects to examined whether very legitimate concerns exist below the detritus of judicial emails.

For decades, seniority mattered. Those Circuit Court judges we hold in high esteem? All worked under a system of seniority 'rights'. That system operated to reward long serving judges, (who otherwise receive the same salary as a first year judge), provided a (very) rough system for allotting division assignments to more experienced judges, and limited the scope of the power of the chief judge.

With the recent change, it is not so troublesome that the seniority system has changed, but that Chief Judge Brown has arrogated the power to change it. In doing so he removes the check provided by the seniority system.

It is this last point which is most concerning. 'ScottAfrica' advises Judge Cueto, "being a team player will ultimately get you what you want." Consider that. For whom is Cueto playing? I dislike answering the obvious, but for those who can't see beyond there own nose, being "a team player" means pleasing the chief judge.

Stop there and consider the possibilities for abuse. Vote for me and I'll move you to any division you want. Vote for me and I'll give you any office you want. Vote against me and find yourself banished. Come election time, don't expect to be downtown schmoozing donors at La Loggia, try the sausage cart at Juvenile.

Which is to say, the Chief Judge, by ignoring seniority, is able to make being a judge both more and less enjoyable. He is able to affect the ability of individual judges to raise money or acquire prominent positions.

So Rumpole's attempt at creating a humourous straw argument that he may knock down, in turn, wholly misses the point. He glosses over very real and worrisome institutional issues by dismissively writing:
Yes folks, rather than spending time writing scholarly articles on the application of the exclusionary rule, or new developments in death penalty litigation, or the pros and cons of drug court and treatment versus prison, our Judges are consumed by a much more personal matter: who gets the better courtroom, parking spot and chambers? Sad, isn't it?

Well, yes, it would be sad... if it were true. It's not.

(Neither Cueto, his mother, nor anyone mentioned by name in this blog. Ever.)

Anonymous said...

8:12 pm, do you know if former judge Dominic Koo was also bar counsel at some point?

CAPTAIN said...


TO 1:25 PM:

You aren't even close. It was five Judges (not three), including: Milian, Ferrer, Young, Pereyra, and Mills Francis.

TO 2:14 PM:

Congratulate Al Sepe on 55 years of marital bliss today,

TO 6:13 PM

You must be drinking again; Judge Cueto was elected in 2008 when he garnered more votes than his opponent Josie Perez Velez

TO 7:50 pm (Old timer)

You are the only dip shit in the room. The List serv has been one of the best additions to FACDL and he was using it for the exact purpose it was created.


CAPTAIN said...

oH, YEAH, Barnaby, your touche was even better than mine!

Cap Out ...

Anonymous said...

the problem is that circuit court judges PISS on county court judges.. for some reason they think that it's not real work therefore their time is not to be considered. remember a judge is a judge is a judge.. soto, leban, reyes, sarduy, tunis, venzer just a few judges who started in county court.. maybe the rest of you should take a week and work in county and see what it's like before you snub your noses. cueto, consider it a GIFT that you're a judge 'cause you suck as a person. PATHETIC