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

Monday, August 31, 2009

SHAKE ON IT? NOPE,

THE CAPTAIN REPORTS:

MORATORIUM ON HAND-SHAKING AT ALL MIAMI-DADE COUNTY COURTHOUSES ....

Beginning tomorrow, September 1, 2009 and continuing for the rest of flu season, OUR HONORABLE CHIEF JEFE Joel Brown and his office along with the CLERK OF COURT Harvey Ruvin together with the AOC of the 11th Judicial Circuit, has called for a moratorium on hand-shaking at all courthouses located in Miami-Dade County.

We at the BLOG support this effort and encourage all attorneys at the GJB to go with the fist pump or elbow pump as a substitute for the handshake.

The CDC has stated that the swine flu could infect upwards of 40% of our population and that as many as 90,000 could die this year from the flu.

According to the statement released by the 11th JC, "The safest way to avoid transmission of the flu virus begins with less contact - and the easiest way to accomplish that around the courthouse is through less hand-shaking".

The Captain agrees, and as a Public Service, we will continue to print this regularly until we begin to notice a severe drop in hand-shaking at the GJB.

CAP OUT .....

Well done.
Here's a bit that's on the Broward blog:


I Put A Spell On You - did you ever wonder what the deal was with the messy poultry remnants sometimes found on the stairs of the Miami Courthouse? Of course, most of the Miami natives know where this is going ... Santeria! Still, having been raised on Wonder Bread and sour cream, we couldn't believe our ears when our favorite ex-patriot Miami lawyers told us about having to find someone once to reverse a very effective bad luck spell, cast on them by a Madrina for a client they went to trial with. Needless to say, it was an eye-opener to learn all about being blessed by a priest in order to get hired in the first place, and how they'd experienced a long winning streak with the many other Santeria cases they'd handled in the past. We really enjoyed the part about the priests having to have the judges', witnesses', cops' and prosecutors' names, with correct spellings, for "prayer purposes" before trial (no one has ever been proven hurt by a Santeria ritual in real life, by the way). At least one young prosecutor, we're told, was so freaked out by the eye-piercing presence of a priest during voir dire, that the case ended up being quickly resolved soon after the break. Amazing ... why do Miami lawyers have all the fun?

PD OFFICE IN TURMOIL

It is our sad duty to report that the once proud Dade County Public Defender's Office is in turmoil.

Morale is in basement (and they don't even have a basement on 14th street, do they?)

Some top (very top) guys were at a goodbye party for a PD leaving for a civil firm last Thursday and were telling everyone that they were going to get poor Ol'Rumpole. This is apparently how scared they are of us mentioning that there are problems in Casa de Carlos.  One top PD  guy has "hacker friends" who are going to hack us and shut us down, while others are sure that a lawsuit would work. Tsk tsk. Don't you guys have a representation crisis? (click the link). 

Instead of drafting lawsuits against our humble blog, how about picking up a file and pitching in?

Anyway: here are some of the things that are bringing people down:  (note- these are summaries of emails we received from assistant public defenders. Some have identified themselves, others have not but have answered some of our questions to at least satisfy us they appear to be PDs. It should also be noted the context and tenor of the emails and the subjects they all mentioned were remarkably similar.  So after reading this  log in and respond- are things okay dokey at 14th street, or are there problems? We will print the responses on a front page post.)

ITEM: RAISES FOR SOME.
There is no money for raises. Yet-one very highly placed administrator's salary went up $49,000.00 from 2002 to 2006. 


ITEM: DRESS CODE FOR JAIL: Work for the PDs and go to jail. Do not pass Go, do not speak with silent Charlie, and DO NOT WEAR JEANS.

Yup. If morale wasn't bad enough in these tough times with no raises except for a few feeding at the public trough, the PDs are now being yelled at for their out of court dress.

There are other issues. A few PDs raised an issue of nepotism to us, but while we confirmed some details, others are still murky- but this issue has some assistant PDs upset. 

A few other PDs raised the issue of a supervisor accosting people in a parking lot on a few occasions and on one occasion rifling through the files of another PD while that PD was on vacation looking for evidence that the PD on vacation was not taking enough depos.

There have been in our emails even more serious and insidious allegations, but we can't confirm all the details, so we just write this so that the leaders at 14th street know we know about them, and apparently so does some major media outlets in our community. Maybe they amount to nothing. And maybe they don't. We'll be here to see. 

So there you have it: all the makings of a revolt in PD land. Morale is rock bottom, and the guy at the top ain't saying nuttin (just like they tell their clients to do. ) All they can do is threaten our humble blog. 


 In the history of the blog there have only been two other people to threaten to shut us down- one got disbarred but still shoots us threatening emails every now and then, and the other faded into obscurity, having achieved nothing. And now, it appears possibly some of the top people at the PDs office may be joining that august group of malcontents.


Here's a piece of advice: Try looking in a mirror and cleaning up your own house first. Either I work there, or a whole lot of your people are upset and talking. The blog is not your problem; morale is. 


We should all be on the same side here. The Dade PDs office produced some of the finest lawyers in this country. We here at the blog don't want them to fail. We want the PDs office to carry on the proud tradition and do the normally excellent job of defending their  clients that the attorneys have historically done.

 We used to feel the same way about the SAO, but since Janet Reno left that office has descended deeper and deeper into a bureaucratic morass killing the innovative spirt of all who work there. We would hate to see the same thing happen to the PDs office.  But that's the way it appears they are heading. It is true Mr. Martinez hasn't had a full year yet to get things running, and he is entitled to more time. But currently some of his employees are upset, and they're talking.   

Here's our advice:

Ease up a bit. Let the attorneys wear jeans to the jail and keep your eye on the ball- serving your clients. The rest is just BS. 

See you in court, getting PD tips all the time.

Saturday, August 29, 2009

THREE BROTHERS, TOGETHER AGAIN.




The three brothers are together again.


Where once it never rained till after sundown,
By eight a.m. the morning fog had flown...
Don't let it be forgot
That once there was a spot
For one brief shining moment that was known
As Camelot.


UPDATE: Rumpole traveling. Talk amongst yourselves.

The Supreme Court announced yesterday a rare September re-argument in the "Hillary the Movie" case which was argued in March. The issue is whether the court should uphold a 1990 ruling upholding restrictions on corporate spending to support or oppose political candidates. At the original argument a government attorney answered a hypothetical that the government could criminalize the distribution of books by corporations advocating for a political candidate. The answer drew gasps in the courtroom and pure shock from Justice Alito.

Thursday, August 27, 2009

3rd DCA ROUNDUP

Better late than never....

Dyer v. State: Staring at the wall for a while before making an incriminating statement is not good for your legal health: In Jump v. State, 983 So. 2d 726 (Fla. 1st DCA 2008), State v. Lebron, 979 So. 2d 1093 (Fla. 3d DCA 2008), and State v. Pitts, 936 So. 2d 1111 (Fla. 2d DCA 2006), the courts have held that, where a defendant makes a statement after receiving a Miranda warning which confirms an earlier voluntary statement made before Miranda warnings were given, the post-Miranda statement is admissible if the police officer did not engage in a calculated two-step strategy to undermine the requirements of Miranda.

Moral of the story: keep your trap shut when in custody.

State v. Tabuteau: A motion to vacate a conviction based on a deportation order was granted by the trial court but reversed by the 3rd DCA because the conviction was not the sole basis for the deportation order. Judge Thornton takes the hit for trying to do the right thing.

Del Valle v. State: Speaking of not speaking, when you are smart enough to invoke Miranda you run the risk of spending the rest of your life in jail when you reinitiate conversation with the police and confess to murder. Duh.


WALL OF SHAME : for not attaching portions of the record showing that the movant was not entitled to relief: Judge Dava Tunis in Perez v. State; Judge Tony Marin in Palomino v. State.

IT COULD HAPPEN HERE PART TWO

We are pleased out first post on the ominous subject of the State's so called "interest" in the health and demographics of population growth drew so much interest and comments. So we continue with the second part of our view on this subject.

(Those of you tuning in hourly awaiting the big PD expose, fear not. We are vetting sources and checking the documents and dealing with certain legal issues, including semi-anonymous email threats from those at certain buildings on 14th street who believe they may be mentioned in the post. Have patience.  UPDATE: Our putative PD post is causing concern on 14th street. Without us even mentioning his name, one very top advisor/supervisor (hanger-on'er)  is running around telling people he hopes the "asshole who runs the blog names him" so he can take some sort of legal action. "Get in line pal", is all we have to say about that. 
Care to comment on the woman who left the office and is now in California? Why did she leave? Any comment? Care to comment on the "attorney" who can't pass the Bar's background check but was offered a job anyway?  He doesn't happen to have any "family" working at your office does he?  Still making PDs wear suits to the jail? How's that working? Anyway, keep ranting about us. At least we know you're reading the blog. And that's a good thing. 

In Buck v. Bell we analyzed the 1927 decision upholding the State of Virginia's "right" and ability to forcibly sterilize some of its citizens. Some of you, ignoring that the famous Oliver Wendell Holmes wrote the opinion, brushed Buck v. Bell aside as a decades old irrelevant case with little meaning. Ignoring for the moment that forced sterilization's continued through the Nixon administration, how relevant is the decision in Maher v. Roe, 432 US 464 (1977)?

In the wake of Roe v. Wade, Connecticut issued regulations limiting Medicaid payments to women seeking first trimester abortions to those that were "medically necessary." Two indigent women challenged the regulations.

Since State Medicaid payments payed for "normal" child-births, the issue was framed by the court as whether a State could distinguish between funding abortions and child-births differently under the US Constitution.

Powell wrote for the majority 6-3. The first thing Powell addressed is what Roe did NOT cover: Roe did not declare an unqualified ‘constitutional right to an abortion. It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds’.”

Since Roe implies no limitation on the State to make value judgments, the door can certainly swing the other way: The State can make a value judgment favoring abortions as a policy. Impossible you say? Read on McDuff...


“The State unquestionably has a strong and legitimate interest in encouraging normal childbirth . . . an interest honored over the centuries.” Fn 11. (Emphasis supplied.)

And now it gets really really scary because here's what Powell wrote for the majority in footnote 11:

“In addition to the direct interest in protecting the fetus, a State may have legitimate demographic concerns about its rate of population growth. Such concerns are basic to the future of the State and in some circumstances could constitute a substantial reason for departure from a position of neutrality between abortion and childbirth.”

Put another way: Two so called conservatives (Rhenquist and White) three moderates (Burger, Powell and Stewart) and one liberal (Stevens) had absolutely no problem signing an opinion asserting the State's right to regulate the fetus in compliance with State mandated population and demographic growth concerns.

The State may want population growth and won't pay for abortions. Or more likely, the State may decide we have enough people for now and can "depart from a position of neutrality between birth and abortion" and....and ? And dare we say it? Justice Rhenquist signed on to an opinion that clearly says the State may ENCOURAGE (or more) abortion to control the population.

You see, as we have been saying forever, there is no difference between this popular distinction between liberals and conservatives. They both fervently believe the State owns you, they just differ on what the State should do with that ownership.

In Buck v. Bell the Court allowed the State to sterilize imbeciles and epileptics, and people wrote we were over-reacting.

In Roe v. Maher, the court called the spade a spade- the State owns the fetus and may in the future fund or refuse to fund certain procedures based on "legitimate state goals" like population growth.

And all you women thought the Roe cases were protecting your body.

Please note: We ARE NOT talking about abortion here.
We are talking about the philosophical underpinnings of these cases, which have little to do with abortion and everything to do with individual rights or the lack thereof.

We are NOT saying President Obama wants death squads.

We are saying as we approach this debate on health care to watch what is said and written and the philosophy behind it very carefully. Because as we read Maher, the philosophy and constitutional underpinnings for justifying the ability of the State to tell elderly people that the state can't afford to pay for their medical care anymore, or of forcing abortions for population control, are well in place.

Do you still think Buck v. Bell was an aberration and insignificant?

FN1: In Maher, the court clearly states the Constitution imposes "no obligation on States to pay for ...any medical expenses of the indigent."
How does that square with the current debate?

NB: Due to our long standing blog policy, we don't write about personal issues of Judges, including where they live, or how much money they have unless it directly affects some aspect of their work. Apparently, cheaper and more "National Enquire-esque" type blogs don't have that same policy. C'est la vie.


Wednesday, August 26, 2009

SENATOR TED KENNEDY HAS DIED

Senator Edward Kennedy has died. He was 77. The last remaining son of Joseph and Rose Kennedy and their youngest child, Ted Kennedy lived to see the deaths of his brother Joe, during an ill fated bombing mission in World War II, and brothers John and Robert at the hands of assassins.

Ted Kennedy had many "finest hours" including epic battles in the Senate, his "The Dream Lives On" speech conceding defeat to President Jimmy Carter at the 1980 Democratic National Convention and many others.

But for us, Ted Kennedy never stood taller then when he eulogized his last surviving brother- Robert, in June of 1968 in New York:

My brother need not be idealized, or enlarged in death beyond what he was in life; to be remembered simply as a good and decent man, who saw wrong and tried to right it, saw suffering and tried to heal it, saw war and tried to stop it.

Those of us who loved him and who take him to his rest today, pray that what he was to us and what he wished for others will some day come to pass for all the world.

As he said many times, in many parts of this nation, to those he touched and who sought to touch him:

"Some men see things as they are and say why.
I dream things that never were and say why not."


Edward M. Kennedy was many things, but today we remember this: he was a great American.

Monday, August 24, 2009

IT COULD HAPPEN HERE

IT COULD (AND HAS) HAPPENED HERE.


Choosing life based on genetics. Ordering death or sterilization for those whose physical/mental appearance or abilities do not meet the standards of the State.


Does Obama’s health plan call for death squads? Of course not. Is there constitutional authority for such squads? You tell me.


ITEM:

Between 1924 and 1972 in the US some 65,000 American men and women were involuntarily sterilized by state governments, 8,200 by the State of Virginia:


A Virginia statute (Acts 1924, chap. 394, p. 569) provided that:


Whereas, both the health of the individual patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives . . . Whereas, human experience has demonstrated that heredity plays an important part in the transmission of insanity, idiocy, imbecility, epilepsy and crime; now, therefore . . .

Be it enacted . . . That whenever the [State of Virginia] . . . shall be of opinion that it is for the best interests of the patients and of society . . . the operation of sterilization on any such patient confined in such institution afflicted with hereditary forms of insanity that are recurrent, idiocy, imbecility, feeble-mindedness or epilepsy. . . . (Emphasis added.)


Don’t be poor and stupid (or have epilepsy) in Virginia in the first part of the 20th Century because the State owned you, and the state could sacrifice you as the State deemed fit.


Carrie Buck was “a feeble-minded white woman who was committed to the State ... She was the daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child.” (Buck v. Bell, 274 U.S. 200, 205 (1927).


Carrie Buck was ordered sterilized, Virginia having found that she was the probably potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization.” (Buck v. Bell, 274 U.S. 200, 207.)


Yes, you read that correctly. Virginia was forcibly sterilizing women who the State believed would "probably" produce "socially inadequate offspring." Anyone feel like defining for me "socially inadequate offspring"? By the way: anyone suffering from epilepsy reading this blog? Because if you had epilepsy in Virginia in the 1900's they were after you as well.


The Virginia Supreme Court upheld the statute, stating that the law was meant topromote the welfare of society by mitigating race degeneracy and raising the average standard of intelligence of the people of the state.” (Buck v. Bell, 130 S.E. 516, 519. Emphasis added.)


Forced sterilization can’t happen in the US you say? Have you read Buck v. Bell, 274 US 200 (1927)? The Supreme Court (Oliver Wendell Homles for the majority) up held 8-1 the right of the State to sterilize it’s”idiots”.


Does the State own you? Here’s what Holmes said:


We have seen more than once that the public welfare may call upon the best citizen for their lives [i.e., the draft]. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, ...[if] society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes . . . .


(And then Holmes wrote the sentence that will live in infamy among those of us who don’t believe the State owns you:)


Three generations of imbeciles are enough. (Buck v. Bell, 274 U.S. at 205. Emphasis added.)


So you tell me, can it happen here?


Post script: The State sterilized all of the Buck siblings; a brother and two sisters including Doris, who had gotten married and was by all accounts not mentally retarded.

According to The New York Times:

For years... she (Doris Buck) and her husband . . . could not understand why she could not bear children. “I broke down and cried,” [she] told the [newspaper]. “My husband and me wanted children desperate—we were crazy about them. I never knew what they done to me.”


As far as I know, Buck v. Bell is good law, and the philosophy behind it- the State owns your life and can sacrifice it, your body, or parts of your body- for the good of society- still rings true today.


See You In Court, fighting the State.






DUIS DOOMED?

The Armando Gutierriez who was indicted in New Mexico and is a political consultant there and who may have some ties to South Florida is NOT the same Armando Gutierriez who runs many judicial campaigns in Miami.

If DUIS and something called an "intoxilyzer" are your things, then courtesy of the Broward Blog here is a North of the Border Judge's ruling throwing out breath tests because of something like they forgot to feed the hamster on the wheel inside the contraption.


Many of you remember Ted Klein. Ace lawyer. Very well respected. Got his dream job as a federal magistrate only to have the building he presided on kill him with mold. The wrongful death lawsuit filed in federal court was dismissed last week. The DBR article is here.

Ted was killed by the negligence of federal managers who knew about the mold problem in the courthouse and did nothing about it. It's more than a damn shame- It's a &!*$%&)*&* Tragedy.

Just in case you missed it, Phillies second baseman Eric Bruntlett accomplished for the first time since 1927 an unassisted triple play to end the game in the ninth inning of the Mets/Phillies game on Saturday.

Coming this week: CHAOS AT THE PDS OFFICE. Silent Charlie won't talk, but others have and the stories we hear. Morale at the bottom. Dress codes being enforced for jail visits. Who got raises and who didn't and why. And what about that hush hush sexual harassment complaint? We're getting the details. Stay tuned.


Saturday, August 22, 2009

IT'S A FOOTBALL SUNDAY!!!! (Saturday night)

DOLPHINS UPDATE: Rookie sensation CB Sean Smith and CB starter Jason Allen are out of tonight's game with the FLU. Various media outlets are reporting it is the Swine Flu, but other reports indicate that no tests have been done and doctors are generally calling any flu this time of year as "suspected swine flu."

UPDATE- I took down an item about a person in Miami being indicted because there is a dispute about just who it is.

We just couldn't wait anymore, especially since fans started talking smack on the blog yesterday.

With the home town Fins coming off a surprising playoff appearance last year, we break down the AFC East:

Bills: Just signed their #1 pick, DE pass rushing specialist Aaron Maybin to shore up their anemic pass rush. But perhaps too little too late as Maybin missed most of training camp and will not have an immediate impact. And too much TO could have the same impact once the season starts. Most importantly, Bills RB Marshaw Lynch is out with a 4 game suspension. Bills have another tough season and will be lucky to be 8-8.

J..E...T....S.: First year head coach, rookie QB. Nuff said. We like Rex Ryan, and the Jets will have a tough D. But we don't see a running game able to take the pressure off the QB. Also weak at the WR position.

NE Cheaters: Brady is back. (Yawn.) He will have a good season. (Yawn.) The Pats will win the AFC East. (Yawn). They ain't doing much this year. F/A Signings were Fred Taylor (old) Joey Galloway (older) Shawn Springs (old). The Cheats will go 10-5 or 11-6 and out in the first and second round of the playoffs. (yawn).

DOLPHINS. This team is on the way up, make no mistake about it. However the Dolphins may not have a better record than last year. The Cheaters won't be surprised by the Wildcat, although we can look for the next evolution of the Wildcat- throwing- which is why the Fins drafted QB Pat White and blew it by not signing Vick. Vick would have made this team a legitimate SB contender. Now with a more difficult schedule the Fins will have to compete for a wildcard slot. And with teams like the Ravens and Titans on the rise, and other AFC powerhouses like the Chargers and the Steelers, it is no safe bet the Fins will make the playoffs. They need to get off to a good start by beating the Colts at first home game, as the Colts will be a strong contender for a wild card spot this year.

It all comes down to running and defense. Query: Which team has the most yardage running since 1970? The Steelers, with the Cowboys in second place about 5,000 yards behind. Which team has won the most superbowls since 1970? Yup, the Steelers, and the Cowpokes won 3 in the 1990's. The point is that you run to the superbowl. Can Ricky and Ronnie carry the load? Yes. The Dolphins have arguably the strongest running game in their division.

Defense also wins Championships. Recall the SB winner last year and remember what they did on defense. The Fins defense is shaky. We will have a Rookie CB starting on one side, most likely Sean Smith, who was a steal in the second round. First round CB pick Vontae Davis is heading to be a bust- his athleticism does not make up for his lack of football knowledge and desire to play the game. Remember that his brother, a first round TE for the 49'ers is also turning out to be a bust for the same reason.

The Fins are aging on the D-line/linebacker spots. Joey Porter peaked last year and Jason Taylor peaked a few years ago when he was the defensive player of the year. Matt Roth has a mystery injury, most likely a sports hernia that will require surgery, and DT Jason Ferguson is entering his 13th year. DE Phillip Merling was a steal last year, and this is the year for Channing Crowder and Will Allen to step it up to the next level and play pro-bowl caliber defense.

The Dolphins are still a growing team. The future is Chad Henne not Chad Pennington. However the fins are weak at WR. Ginn is a developing solid starter but Devon Bess and Greg Camarillo will not make any of us soon forget Duper and Clayton at wide receiver. That's why the running game is so important.

9-7 will be good, 10-6 might be a reach.


Rumpole's AFC East predicted final standings.

Cheaters.
Fins.
Bills.
Jets.



Friday, August 21, 2009

JUSTICE?

Update: Speaking of justice, John Leighton and Ira Leesfield are two of Miami's well known and well respected attorneys. For many years they worked together in a partnership. The South Florida lawyers blog writes about their blow up and here is a copy of the shocking complaint in Leighton v. Leesfield. 

This is sad to see a 42 year friendship dissolve in this fashion. 


There are two news items for us to ponder in our never ending examination of Justice:


ITEM: SCOTLAND RELEASES MAN CONVICTED OF LOCKERBIE BOMBING:

On December 21, 1988 terrorists blew a 747 out of the sky over Lockerbie, Scotland, killing 270 innocent men, women, and children.

The one man convicted for this horror has terminal cancer and has been released to go home and die. We do not agree with the decision. None of those killed by his cowardly act had a chance to go home and say goodbye to their loved ones. Their lives were violently and unexpectedly ripped from them.

That being said, there is a strong measure of admirable humanity in the reasoning behind the release. Here is part of the transcript from a CNN interview with the Justice Official in Scotland who authorized the release:

MacAskill: Well, I've said all along, and I said in my statement, I'm very, very sorry for the grief. It started in the 24th of December, 1998 (sic) when a heinous atrocity was perpetrated above one small town in Scotland, taking the lives, not just of Americans, but 11 people from our small land.

Nothing can assuage their grief. There is nothing that I could say to Mrs. Cohen or to anyone else that will ease the pain that they have on a day and daily basis.

But in Scotland, our justice system is not predicated on vengeance, but on bringing people to account. And equally, our value system is predicated on seeking to treat people in a matter that is merciful and compassionate, even if they do not show to us as we would wish to show to them.

Blitzer: Do you...

MacAskill: So I'm so heartfelt sorry for Mrs. Cohen and every other victim for the Scottish, UK, American or wherever else. But equally, we are adhering to the values that we have and are following the due process of law that we possess.

Blitzer: Do you realize that you've made their grief so much more powerful right now because they see the picture of this guy walking on a plane and flying back home to Libya where he is about to be received with a hero's welcome?

MacAskill: I've released a sick man. The medical evidence given to me in a report dated 10th August by the Scottish Prison Service says that he's terminally ill. That is a sentence that I cannot impose in Scotland, no court could. We do not have the death penalty. It's final, terminal and irrevocable.

That sentence that he now faces cannot be revoked by any court or overruled by any jurisdiction. I have decided to allow him to go home to die. I am showing his family some compassion. I accept there was a compassion not shown to families in the United States, or in Scotland.

But we have values, we will not debase them, and we will seek to live up to those values of humanity that we pride ourselves on. He was brought to justice after tremendous -- what, not simply by Scottish police and prosecution authorities, but by the United States.

Equally, as I say, in Scotland, justice is tempered with compassion. And that, as I say, is why he has been allowed to go home to die.


Rumpole says: We're not so sure he's right; we're not so sure he's wrong. We are sure our prison system needs a strong dose of what Mr. MacAskill is saying.


Item: Plaxico Burress pleads guilty to shooting himself in the leg and gets two years.

As many people are commenting- one football player in Miami drives impaired and kills another human being and gets 30 days. Another football player shoots himself in the leg and gets two years.

Something's wrong here?

Maybe. Maybe not. New York has very strict gun laws. In the US in 2006 there were 30,896 gun related deaths- or more than ten times the number of people who died in the 9/11 attacks. And that number remains fairly consistent year in, year out, decade in, decade out. States have legitimate interests in regulating the carrying of firearms and NY has well known and very strict laws about illegally carrying firearms.

The problem, if any, is in the result of the Stallworth case not the Burress case. If Mr. Burress wants to emulate the "thug life" he sees in videos and music, then he can do the time and pay the price that kind of life leads to .



Wednesday, August 19, 2009

3rd DCA ROUNDUP

UPDATE: If you want to understand what end of life care is, and not be frightened by the nonsense of "death panels"read this NY Times article on Palliative care. We should all be so luck at the end of our lives to receive compassionate palliative care.

The worst thing that could personally happen to these morons like Sarah Palin is to have body/spirit breaking aggressive medical treatment at the end of their life. Unfortunately for the (hopefully small) percentage of the US Public that considers her a leader on this issue, Palin won't understand the folly of her ideas until she's dying. Then she'll know.

THE EMPIRE STRIKES BACK EDITION.

From James v. State, Judge Shephard, somewhat upset:

On August 24, 1999, Derrick James was sentenced to twenty years in state

prison as a habitual felony offender and prison releasee reoffender for burglary of

an unoccupied dwelling and grand theft. Since then, he has peppered the trial court

and this Court with post-trial motions, petitions, or appeals, almost faster than we

or the trial court could respond.


We fervently disagree with James’ assertion that he has acted in good

faith. We do conclude he has exhausted his post-conviction remedies and certainly

has exhausted us in the process.


(Here's comes the hammer:)

We further direct the Clerk to forward a certified copy of this opinion to the Department of

Corrections for consideration by that institution of disciplinary measures against

James pursuant to sections 944.279(1) and 944.28(2)(a), Florida Statutes (2008),

for the filing of a frivolous appeal.


Alonso v. State- Got a speedy trial question? Here's a speedy answer:

(Hint- the rule may say "speedy trial" but the rule of thumb is wait a day or so just to be sure.)


Silvio Alonso got himself arrested for drug trafficking. On THE LAST DAY of the speedy trial demand period his lawyers filed a Notice of Expiration. The court concluded the notice of expiration was premature and struck it. The 3rd DCA affirmed.


Poor Silvio. His lawyers were a wee bit anxious. Rumpole's rule of litigation: when in doubt, wait a day to be sure.


Don't make this mistake folks. If the speedy trial period applicable to your case expires on say the 15th of the month. File the NOE on the 16th, notwithstanding the plain language of the statute that says you can file the NOE "on or after" the date of expiration of the time period.


See you in court, where patience is a virtue.







Tuesday, August 18, 2009

THORNTON SEALS THE HIRSCH TAPES




BILL TAKES AIM AT DC?
And with all the politicians out of town, what a waste of a good hurricane. 



The South Florida Lawyer's blog and the Sun Sentinel (the title of the post links to the Sun Sentinel article) report that Judge Thornton has SEALED PERMANENTLY the "Milt Hirsch" tapes. 

Thornton is quoted as saying that he listened to the tapes "not once, but several times" and that the tapes DO NOT, repeat, DO NOT SHOW THAT HIRSCH TOLD HIS CLIENT TO FLEE. 


Rumpole says: this must be some vindication for Milt Hirsch. It is not easy to have your reputation bandied about with rampant speculation on what was said or not said on tapes on which it is alleged wrongdoing was discussed. 

We can't help but think that since Judge Thornton was very clear that Milt Hirsch was NOT advising his client to flee, that it would have been better for Milt Hirsch to have the tapes released. However the decision was not Milt Hirsch's to make and he has to live with the decision of the judge. 

We can't help but think that it was 35 years and one week ago on August 11, 1974 when President Nixon was forced to resign the presidency when tapes showing his complicity into the Watergate break in and cover-up were released to the public.  Many people have commented in retrospect that it would have been better for Nixon to destroy all the tapes. 

In Mr. Hirsch's case,  it appears his actual innocence is on the tapes. 

We have a few questions: did Judge Thornton deny the motion for post conviction relief? And if so, did the specific conversations on the tape affect his decision. put another way- did the Judge listen to the tapes and did that contribute to the decision to deny the motion? 

If so, then we applaud Judge Thornton for reaching a decision on the full merits and considering all the evidence. 

Monday, August 17, 2009

NPR REPORT: PD PLIGHT

Be warned: this is a very disturbing post.

(If you're interested in a Dolphins preview, check out the previous post. And we are happy to report that Ana's cyclonic circulation has dissipated to point where she is not even being tracked for the time being. )

The title of this post links to the NPR article on the failed PD system. The article actually appears to deal with the problems of SAPDs or "conflict counsel". While Miami gets a mention - with PDs complaining the only time they have to see their clients in jail is on the weekend - ( and we respond by saying that they should do a little better at the bond hearing and they won't have so many clients in the can)- the real terror is the appointed private lawyer system in Detroit.

One Bob Slameka has been making a living - if you can call it that- for the last 40 years by handling appointed cases in Detroit, where the fees haven't been raised in 30 years. Slameka proudly refuses to take phone calls from his clients because he won't get reimbursed for the costs, and only sees his in custody clients a few moments before court.

A lawyer like this is a tragedy waiting to happen- and that's just what did happen when Slameka did his usual slip-shod work on an appeal for a client named Eddie Joe Lloyd who ended up serving 17 years for a murder he didn't commit. Another team of lawyers eventually succeeded in proving Lloyd's innocence through DNA.

Here's the outrage: When Lloyd complained about Slameka's poor work on the appeal, including failing to consult with him about the issues in the brief- here is what Slameka wrote back to the state Bar about his innocent client:

"This is a sick individual who raped, kidnapped and strangled a young woman on her way to school. His claim of my wrongdoing is frivolous, just as is his existence. Both should be terminated."

When asked if he really thought his own client should be executed, Slameka said yes, that's what he wrote at the time and that's how he felt.

"That's exactly what I wrote. That's exactly how I felt," he said. "You know something? Because of people's actions, a lot of people don't deserve to live. OK? You take people's lives — I'm not saying, an eye for an eye — but because of the nature of your behavior, sometimes maybe you don't deserve to live on this Earth."

When reminded that Lloyd was exonerated and never actually killed anyone, Slameka brushed it off. He said he didn't have DNA evidence at the time, and criminal defense is a very different job now.

Rumpole says: You get what you pay for in life. And make no mistake- there isn't a legislator around who believes running a campaign with the promise of paying more money to defend accused individuals is a winning cause.

"Getting tough on crime" is the slogan that gets them elected. And once elected, politicians have no desire to be accused of raising taxes to pay for indigent defense. This causes the Bob Slameka's of the world to crawl out from under a rock and take up the job nobody else wants,

We're so damn proud of our legal system. We like to call it the best in the world. Ask Eddie Joe Lloyd how good the US legal system is. He served 17 years for a crime he didn't commit.

Wait. You can't ask Mr. Lloyd. He died two years after getting out of prison. His life mostly wasted by the incompetence of a lawyer who wanted to see him executed.

A lawyer advocates for the execution of his client who turns out to be innocent. And this lawyer is STILL practicing law!!!!
This makes us sick.

See you in court.