Thursday, February 18, 2010

3rd DCA ROUNDUP - CIVIL PROCEDURE EDITION

For perhaps the first and last time, we discuss an issue of civil (yuck) procedure.

Murray v. State. For all you civil commitment mavens out there be warned: to preserve a sufficiency of evidence argument on appeal not only must you make a timely motion for a directed verdict, but to preserve the issue you must also make a post verdict motion for entry of a judgment in accordance with the motion for directed verdict. Fla. R. Civ. Proc. 1.480(b). (This is the first and last time you will see us cite to a rule of civil procedure.


Query: What should a defense attorney be allowed to argue in closing? Well for starters, anything the jury is instructed on. Duh!.

Serge Jean v. State. Judge Areces catches a reversal for limiting the closing argument of the defense attorney. If an instruction is given to the jury, counsel must be given an opportunity to address the jury on the matter. In this case in which the client was charged with escape, the defense attempted to argue the issue of lawful custody during closing argument. The court sustained an objection when the defense began to challenge whether or not the defendant was in lawful custody. However, the issue of lawful custody was explained to the jury in instructions. Counsel should be permitted to present all legitimate arguments. In so doing, the trial court must afford counsel wide latitude in presenting the closing argument. However, a trial court abuses its discretion when it fails to afford such latitude to defense counsel and, as a result, counsel is precluded from presenting his or her theory of the case to the jury.

8 comments:

Anonymous said...

Hey Areces...

DUH!

(and the ASA is a dumbass for objecting and causing an issue for appeal)

Anonymous said...

Shumster 6 up, 2 down
buy shumster mugs, tshirts and magnets
A person would love to take your (shum).
That girl is a complete Shumster.

shumierian blogspot said...

oh me
oh my
oh look what shumie dod

Betty Blows It said...

Avowed Jew-hater, Mansor Mohammad Asad, 43, will serve three years' probation and have to pay $27,500 in restitution to Delta Airlines. He will also be placed on a federal ``no-fly'' list and be banned from traveling on railways.An Ohio man pleaded guilty Thursday to disrupting a January flight at Miami International Airport by threatening to ``kill all the Jews.''

That was the sentenced approved by Betty Butchko yesterday. The link below is to the full Miami Herald story.

Butchko is allowing this homicidal racist pig to DRIVE to Miami to "kill all the Jews"?

Anonymous said...

Duh is right! More on the ASA or the Court...makes you go hhmm.

Anonymous said...

Gotta love seeing Rick chase his dream. The music's actually pretty decent.

He had his faults as a judge, but, almost always did the right thing. And, off the bench, he's a pretty cool guy.

BTDT

Anonymous said...

Don’t blame Judge Areces only. Who was the ASA who made the objection which caused the referable error? Our system requires two actors to violate substantive or procedural rights, a proponent or advocate and the jurist. Unfortunately, too many young lawyers, on both sides of the aisle, today are ill trained. Inexperienced and poorly trained young lawyers are thrown into the shark infested territory that is the courtroom, without sound mentoring. These young lawyers are expected to survive, or more importantly do what is right. Some young lawyers have common sense and a conscious, leading them to seek guidance, listen, and do what is right; however too many of them, particularly ASAs, are robotic - follow the office policy no mater what - perhaps out of fear or the pursuit of a secure career.

Many young lawyers today are not given the training and guidance essential to becoming a good lawyer or actually becoming a good advocate. There is a distinction between simply lawyering and good advocacy. Lawyering is achieved through simple adherence to the rules, norms, and precedence established, accepted, and “expected” by the populist majority; as opposed to advocacy which requires vision and courage - vision to see the cracks, see the injustice, and the courage to challenge the populist status quo, often at personal expense. Gregory Peck’s Atticus Finch in “To Kill A Mockingbird” and Al Pacino’s Arthur Kirkland in “And Justice For All” exemplify the distinction between the conformist lawyer and the courageous advocate.

Frequently, these ill trained, ill experienced, and poorly mentored robotic lawyers become judges. As judges, there political correctness reinforces their poor robotic upbringing, emasculating what dearth of courage they may have had when they embarked on their legal careers.

We hear judges who transfer to the civil division because they are fed up with the strictures imposed by the legislature. How disappointing. I often reflect upon those jurists of yesteryears, many of whom comprised the Warren Court, and wonder what life would be like today had they chosen the path of “political correctness” rather than use there privileged posts to advance justice.

As a law student a professor whom I grew to admire taught us that an advocate does not accept the status quo simply because it is the popular view of the majority, or as we say today “politically correct.” History teaches that absent courageous - non conformist advocates and jurists we would still live in a segregated society, where suppression of expression, forced confessions and a quick lynching was the norm. Just think, it took courageous, non conformist advocates, both lay and trained, to challenge the status quo and courageous jurists to bring about change. Regrettably, both are a vanishing breed!

So, as Judge Moreno likes to say, what say you?

Anonymous said...

ASA Patrick Hopple?