Tuesday, June 30, 2009
Monday, June 29, 2009
Sunday, June 28, 2009
Friday, June 26, 2009
Thursday, June 25, 2009
Wednesday, June 24, 2009
Tuesday, June 23, 2009
Update: Signs that the apocalypse is upon us:
1) Just look outside;
2) Gloria Estefan is becoming a minority owner of the Dolphins.
Can the "Landshark-Sound Machine" Stadium naming ceremony be far away?
On with the show:
“No State shall . . . deprive any person of life, liberty, or
property, without due process of law.”*
U. S. Const., Amdt. 14, §1; accord Amdt. 5.
*(But the Supreme Court can....)
The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.
Herewith for your consideration: Chief Justice Roberts, avowed statist:
the "power to prove innocence" balanced against "unnecessarily overthrowing the established system of criminal justice."
Which side of the "dilemma" did Roberts come down on? The "established system of criminal justice" of course. Statists side with the State. It's what they do.
Lord forbid Roberts should find that the overwhelming power to prove innocence was such a revolution in technology that it called for a "new system of criminal justice." A system which removed the propensity for error inherent in such unreliable evdience like eyewitness testimony.
Want more? You got it. Roberts admits that actual innocence may not entitle a convicted prisoner to relief. Huh? You read that right:
As a fallback, Osborne also obliquely relies on an asserted federal constitutional right to be released upon proof of “actual innocence.” Whether such a federal right
exists is an open question. We have struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would
pose and the high standard any claimant would have to meet. (emphasis added.)
There you have it. Roberts the statist. The state's interest in preserving an "established system of criminal justice" trumps even the supposed reason for having a system of criminal justice: to protect the innocent and convict the guilty, with the priorities in that exact order.
In Roberts' world the trivial question of an innocent man or woman spending their life in prison pales before the important statist interest in keeping the gulag running smoothly. Call him a statist, call him and Scalia and Alito advocates for state's rights, but don't call them conservatives. They sacrifice the individual at the alter of the state just as readily as any marxist, they just couch their reasoning a bit differently.
Space does not permit it here, but you must read section II of Alito's concurrence, in which he essentially argues that new STR DNA testing is so sophisticated and accurate, that the sensitivities surrounding the accuracy make it.....unreliable. Yes, Alito somehow has written himself into a corner by arguing that the DNA test the Petitioner sought was so technologically sophisticated and thus so sensitive to contamination, as to make the results proof of nothing.
That's the best we can explain his views. As to why he has those views, one must wonder how hard he recently hit his head?
Stevens in dissent writes powerfully, simply and logically that nothing is lost and everything gained by letting a convicted prisoner pay for STR DNA analysis of crime scene evidence:
The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder.
If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to
justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articu
late, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all.
And although this is a lengthy post, we cannot omit Stevens' reply to Alito's concurrence in FN 7 of his dissent:
JUSTICE ALITO provides a detailed discussion of dangers such as
oratory contamination and evidence tampering that may reduce the
reliability not only of DNA evidence, but of any type of physical forensic
evidence. Ante, at 3–10 (concurring opinion). While no form of testing
is error proof in every case, the degree to which DNA evidence has
become a foundational tool of law enforcement and prosecution is
indicative of the general reliability and probative power of such testing.
The fact that errors may occur in the testing process is not a ground for
refusing such testing altogether—were it so, such evidence should be
banned at trial no less than in postconviction proceedings. More
important still is the fact that the State now concedes there is no
reason to doubt that if STR and mtDNA testing yielded exculpatory
results in this case, Osborne’s innocence would be established.
There you have it. To 5 Justices on the Supreme Court, the criminal justice system has more important concerns than "actual innocence."
See you in court, actually fighting for actually innocent people.
Sunday, June 21, 2009
Even if Leonardo Barquin was doing something wrong, he had the right to live and this police officer the responsibility to arrest him, so a judge could determine if he was guilty or not. But justice sometime is betrayed and perverted by some unscrupulous people as this former police officer.
Jorge Espinosa is a violent and unscrupulous man who does not know about limits. After “he left” the Police Department and with a murder in his back and as I mentioned a record of police brutality, this man was able to run for a seat in the Florida House of Representatives. When I found out this, I went to one of the Polling House and to my surprise he was there. At the beginning he was laughing at me, but far a way, but with a cynical smile in his face he approached to me and took pictures of me, probably to intimidate me. But definitely he didn’t know that the love of a mother exceed any type of intimidation or fear.
At first I was skeptical about the “Blue Code” in the Police Department, but not anymore since every time I have seen in the news that a police killed a person, the investigation concluded that the shoot was justified. The translation to the “Blue Code” is corruption and we with our silence are allowing this few people to corrupt our justice system.
Katherine Fernandez-Rundle won’t be all her life the prosecutor of Miami, but unfortunately I think we need to way until she leaves her office for justice returns to Miami. I think that David Ranck is a prosecutor that believes in the justice system of this country and I would like to have his faith, and one day see Jorge Espinosa paying for his crime. I’m Leonardo Barquin’s mother, a boy that with only 17 years old was graduated from High School. He was looking for a University to enroll. He had a lot of plans, a future that was killed with him by a murder dress with a police uniform. I’ll love him forever and will fight for justice the rest of my life if it’s necessary.
Friday, June 19, 2009
Attorney "Shoeless" Tom Risivy has been complaining for some time now that the highly trained security personnel at the Coral Gables Branch Court (Motto: "We're at Christy's. Please leave a message and we will get back to you shortly.") have been requiring him to remove his shoes before being granted access to the building.
Thursday, June 18, 2009
On May 5, 2008, Plaintiff made public the Memo by posting it on a blog he created and sending a link to his posting to the Justice Building blog, a well known public forum
used by lawyers practicing criminal law in Dade County. [DE 1, ¶ 44].
Wednesday, June 17, 2009
Tuesday, June 16, 2009
30 days for a DUI manslaughter? That's a disgrace. Mothers Against Drunk Driving should be up in arms over this one. From now on, no DUI prosecutor should ever ask for jail time on a case that didnt involve a fatality. And I guess the guy that killed the mother and kids a few months ago, who is being held no bond should get 90 days DCJ. 30 days per corpse according the the "Stallworth formula."
How can you resolve the fact that the DUI prosecutors in county court hardly ever break a case down and will try any DUI case, no matter how bad, but Stallworth gets a pat on the back for cooperating with the police and showing remorse. Athlete buys his way out of trouble again and my old boss KFR should be ashamed.
Addendum: Lawyer Tom Risivy can't get into the Coral Gables Court house without either 1) Taking off his shoes at the security checkpoint or 2) Getting a police escort through the back door which is reserved for people getting married and that seems a bit extreme just to get to court on time
Judge Serpahin: Did he get his props for responding to complaints and designating 8:30-9:30 as the time he will call lawyers out of turn on Wednesday sounding calendars? If not, he's got them now.
Monday, June 15, 2009
Friday, June 12, 2009
Braggs v. State. Generic case law here on the issue of Melbourne and striking jurors during voire dire. BUT- talk about pulling victory from the jaws of defeat!! The court initially reversed the conviction because the trial judge left out parts of the mandated “Melbourne analysis”. But after reading the opinion the prosecutor contacted the court reporter who reviewed her notes and the transcript and realized the typist left out many words and phrases during the trial court’s ruling on the striking of the juror. With the new transcript, the prosecution filed a motion for a re-hearing and the 3rd DCA quickly reversed their reversal and affirmed. (try saying that 3 time fast).
Harvey v. State- Friend of the blog Judge Barzee-Flores was reversed when the 3rd DCA ruled that a defendant being held in custody and out of state is entitled to have the time period for filing a rule 3 motion tolled until the time he or she is returned to Florida.
If you have to get reversed, this is the kind of reversal judges can live with.
Harris v. State a/ka “don’t Mess with the 3rd”: The 3rd denied a successive Rule 3.800 motion to correct sentence and reminded the defendant that filing repetitive and frivolous post conviction motions “may result in loss of gain time.” Kaboom.
“You talkin to me?”
“Do you feel lucky today punk? Well, do ya?”
“Yipeee kai aaaa mother f’er.”
Name your favourite movie tough guy tag line and insert it here when dealing with the 3rd. Personally, we only file frivolous appeals according to a certain retired Judge who lets us know his position on our briefs during oral argument.
CHAOS: This is totally off blog, but if you read the NY Times during voire dire like we do, then you have been following the total chaos in which the NY State Senate has fallen into. In a nut shell, Senate Republicans, who lost control of the Senate earlier this year after decades of rule, were able to lure two dissatisfied Democrats- one who is under indictment for slashing his companion with broken glass, and one who is under investigation for campaign finance violations. With the two turncoats in two, (and having made the campaign finance guy the Speaker) the Republicans called for a vote and ousted the Senate Democratic leadership. That was about a week ago. The Democrats left, and took the keys to the Senate Chamber with them, and that's where it sits in Albany.