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Wednesday, February 10, 2010

A BROWEIRD MURDER CASE

UPDATE- We must say that the comments on the Lebow/Rossman contretemps have been very lively and well thought out. Keep it up. The comments about how the Late Judge Morphonios would have handled the issue are spot on.

UPDATE: Please be advised that the East Coast of the United States, north of Atlanta, to the Canadian boarder is CLOSED until further notice. We are sorry for the inconvenience. Please come back another time.

Last week we wrote about a murder case North Of the Border that ended when the State refused to give an opening statement and then refused to call any witnesses after a jury was sworn.

Here is the transcript in what we call Lebow(the judge) v. Rossman (the prosecutor).

The transcript is 68 pages and it reads like a slow moving train wreck. You know what's going to happen, but as you read it you just can't believe it will happen. But it does.

Who's at fault? It's a very interesting question.


MORE ON BENCH WARRANTS:

The issue is this- a defendant shows up ten or fifteen minutes late on a Monday trial setting. Ignoring the enormous lines in front of the building, the Judge order's the defendant taken into custody. Twenty minutes later the defendant - not wanting to spend time in jail- takes a plea. It's not justice. It's shameful. Prosecutors- whose job it is to seek justice- should refuse to take part in these dog and pony shows. And don't even get us started on the type of person who calls themselves a judge who engages in this shameful behavior.

A reader wrote this comment:

Rump
This court time issue is BS. Why do Judges play gottya if you come to a 8:30 sounding at 8:55. The court is still in session, the SAO, PD or PA are there , the Court the clerks and the reporter are there. Big deal, so you or your client are not there at 8:30 on the Fing dot. No harm- no foul, Likely the court will be on the Bench till 10 or 11 ( sometimes till 12 or 1), so what is lost the Judge has to call it out again. With traffic, lack of mass transit and the line to get in, not to mention parking, to BW or AC some one for being late is not only BS but wrong, legally and morally. It just shows how small and petty a Judge can be to A? - B/W or take someone in for being 15 min. late esspecially when court is still in session. FAIRLY Resolving the case not punishing the tardy is/should be the work at MJB!
D.Sisselman


And on a related issue- the County Court mess- a reader had this to say:

Anonymous said...

After all the talk and bullshit, Sam Slom did not listen again. To save the clerk a few bucks he is spending millions on police overtime and creating an absolute nightmare on Monday mornings.

The solution is to have many of the non DUI misdemeanros on any day but Monday.

Hey, what about afternoon trial calendars? Those damn judges are paid to work 9-5 and many go home at 1: 30 pm after forcing all of us to suffer from 8:00 am - noon on Mondays.

Here's an idea, how about a non jury misdemeanor trial calendar at 2:00 pm on Friday...yes Friday. What you say, no judges are around after noon on Friday? Well remember when Rosemary Barkett was Chief Justice of the Florida Supreme Court? She used to call judges randomly on Friday afternoons and do a bed check.

We need a new boss in town.

43 comments:

Anonymous said...

Boy is that person right about the bed checks.

Why do we invite so many people to the MJB on Monday morning for those stupid minor cases at the same time all of the circus judges are setting all of their cases?

When are the police agencies going to start complaining about thier overtime budgets?


Did Slom even ask the PD's or FACDL or the police chiefs before he did this?

Keep in mind, Slom is not lazy or uncaring. He is one of the few judges who actually is in the office working all afternoon but, this decision needs to be reconsidered.

Anonymous said...

I believe that there is blame to be shared between Judge Lebow and the prosecutor in the Broward murder case.

First of all - the bottom line is that the prosecutor should have been prepared with his evidence. Even if he did request it previously, you do it more than 5-6 days before trial, especially if you don't know where it is. I'm sure the case had been continued before (likely defense), so that means the State had probably announced ready for trial at some point prior. If that evidence had been used in a prior PVH, he should have known exactly where it was at least a month before trial.

On the other hand, the Judge should have granted the State a short continuance. A capital murder case is too important to proceed upon when the State clearly tells the court it cannot proceed. Imagine if the defense attorneys had made the same arguments. The judge needs to be fair to both sides. A short 1-2 day continuance would not have been such an inconvenience.

I think this ties into our conversation about judicial calendars and punctuality. I understand that judges need to run tight ships and keep things moving, but sometimes (especially in serious cases like this one), delays happen. Judges need to get off their high horses, realize that they may have to work through the end of the day on Friday, and permit these delays when justice demands it. If this were some bullshit misdemeanor or a C-level felony that had been continued before, I would have no problem with what the judge did. However, all cases are not the same and should not be treated as such. Death penalty cases can be continued for years while both sides prepare. A judge would never permit 10-15 continuances on a grand theft case or possession of cocaine. So the judiciary obviously recognizes the seriousness and the importance of good preparation. Now I think that the ASAs tone with Judge Lebow was uncalled for and rude (and may have guided her in her decisionmaking), but the Judge was wrong to force the State to proceed, ultimately leading to the inevitable JOA.

That doesn't absolve the prosecutor of blame, either. Say what you will about the Miami-Dade SAO, but the death penalty prosecutors down here are top notch and would never be as ill-prepared as this guy.

Anonymous said...

Not to mention the judges who call and tell you to be there at 830 and won't call you till 930

Anonymous said...

After reading the transcript, I can't imagine how anyone could NOT be critical of Lebo (regardless of the state's preparation or lack thereof). Her handling of this case is a disgrace. A one day continuance (which really would amount to a several hour continuance) would not have been a big deal. I hope someone runs against her so I can support him or her.

Not only was her refusal to delay the case half a day unreasonable (even the defense didn't object), but she bent over backwards to make things difficult on the state (among other things, she prompted the defense to invoke the rule of sequestration because she was upset that the prosecutor was speaking to the witnesses in her courtroom).

BTDT

PS---ironically (or maybe not), she granted a defense continuance the week before, then hammered the prosecution for requested the one day continuance saying the case had been set for months. Unbelievable. This is justice?

PS2---before someone jumps on me for posting this, I'm not saying the prosecution did a great job. I'm not addressing the prosecution's work at all. If she wanted to punish the prosecutor, she should have done so using her contempt powers. Dismissing charges against a murderer is an afront to the next of kin and community. And, is an inappropriate way to punish the State.

Anonymous said...

The prosecutor was yelling t the Judge... a no no.

He is very lucky because after his outburst when the jury was seated he gave her reason to show cause.

Basically, she let his smart ass know (1.) who is the boss and (2.) who is smarter legally.

Hats off to Lebow for not playing the BS legal games both defense and prosecutors play daily.

Lebow was not slamming the State, she would have done the same to a smart ass defense attorney if he was yelling at her.

Anonymous said...

I disagree. In a perfect world the judge would have, again, granted yet another continuance in a case that has languished for many reasons. But she picked a jury. Set it for trial on a day certain. The prosecution knew this a long time ago. Why they no ability to put on a single witness, a single piece of evidence, or even an opening statement under those circumstances is amazing. That prosecutor should be fired and then reprimanded by the bar in my opinion. Yes, it is outrageous that a potential murderer was let go. But the State held the keys to his jail cell, not the Judge. Though I think personally she is wrong more often than not, and I would have handled things differently, does not excuse Rossman of professional and moral negligence in this case. When a judge tells me, call your witness, I CALL MY WITNESSES and recall them if necessary. Sheesh!!!

Anonymous said...

That Transcript should be used as a training outline & example of "less than ideal" practices for the State & the Bench. That said, I sense there was more going on here. Why didn't the supervisor step in, tell the ASA to "snap out of it" and present his opening? How can you not know the evidence after one mistrial? Why couldn't he put the arresting officer on the stand? Why didn't a Superior step up and present the witness themself? We've all had to go to to trial under less than ideal circumstances. That is no excuse.

Anonymous said...

La de da:

How many times has a lawyer had to start a serious case without know exactly who was going to show up or when?

I prosecuted a murder once where every civilian witness was homeless living on the street.

We started, the detective found the witnesses, and the defendant was convicted.

This guy, Rossman is a weenie. He could have opened with SOMETHING. Openings take time. He could have put on his eyewitness. This thing happened at 3 or so in the afternoon. Not once did he ask Judge Lebow to let him start and call it a day later. The several hours thereafter could have given him a chance to get his shit together.

But no, he wanted it his way, and he got his ass handed to him. So did his office by the way, as well as the victim's family.

Anonymous said...

Lebow's actions are a disgrace to the bench. This is no cocaine possession, it is a death penalty case, no prosecutor in his right mind is going to give an opening in such a case before making damned sure what is going to be introduced or not. No doubt, prosecutor should have been more prepared but Lebow stepped over the line. She is going to be reversed and will have to start the whole process again.

Anonymous said...

Who is the big loser in this case? The taxpayers. What a huge waste of time and money.
Shame on the ASA for not being more prepared and not having evidence for his DEATH CASE. I understand the logisitcal bullshit with the DCA, but why was that not resolved weeks before the trial date? This is not some "C" ASA on a Grand Theft Auto. It is a DEATH CASE. Inexcusable.

On the other hand, the judge should have granted a short continuance. If she wanted to ream the ASA a new one for not being prepared, then fine.
But after appeals and all the other bullshit, it is only going to cost the taxpayers.

broward shumie time said...

For people reading transcripts- open your eyes- you're blind.

This is a classic case of Shumie time run amok. Can't you see that they pushed the trial to 1:30 and at that point every one could see the shumie light of an early day out of court and it was just egos and posturing as to who would take the rap for the Broward SHumie.

Geeze louise you people can't see the shumie through the bs.

Anonymous said...

The defendant is not a murderer. He was charged with murder, but obviuosly not convicted. So please refer to him as defendant or robber.

I really hope no one believes you are automatically guilty of a broweird county allegation...

Anonymous said...

Morphonious. We need Morphonious!

Anonymous said...

To 2:56 p.m.,

Lebow's not getting reversed. There's an old Supreme Court case, Fong Foo, 82 S.Ct. 671, which holds that even "egregiously erroneous" actions by the trial judge do not permit a verdict of acquittal to be set aside. So, regardless of what one thinks about the appropriateness of Lebow's actions, the first degree murder case against Jason Stone is over.

Anonymous said...

Shumie time, and in Broward no less ... oh, man you're cracking me up. You gotta' stop before I bust a gut laughing. You're just too funny.

Anonymous said...

Morphonios did it all the time. It went something like this:

(Jury is picked and sworn)

The State: Your honor, can we have a half hour recess? Our witness isn't here and the victim/witness coordinator is trying to contact him.

The Court: Both sides announced ready, we picked the jury and I said that we would start the trial at 1:30. The jury is here, the defendant is here. Where is your witness?

The State: Your honor, the victim/witness coordinator is trying to contact him at this moment. That's why we are asking for a a brief recess.

The Court: Denied. What do you have to say, State?

The State: At this time, the State rests.

The Court: Okayyy. Enter judgment of acquittal. Find and adjudicate defendant not guilty.

Anonymous said...

Over the past I don't know how long, every post has some comment about "Shumie Time," "Calling the Shumie," or something "Shumie." I always thought this was a joke - some stupid gig meant to be funny to a couple people, but now I realize I was wrong. There is a shumie, and he is here - http://vids.myspace.com/index.cfm?fuseaction=vids.channel&contributorid=38103029

Anonymous said...

Poleeeeze....judge was within her discretion. State should not appeal because the opinion is going to be very ugly for it.

Anonymous said...

I think that I could call the first witness myself, what lawyer cant think of a bunch of questions to ask the witness to kill some time. She gave him the opportunity to do something, but he was trying to control her and it dont work that way. I guess that he never learned to take no for an answer. I think that if he would have just attempted to do something that she would have ended early for the day and he would have been able to get his evidence for the next day and thats it.

And whats this about Malpractice by a prosecutor? Is there such a thing? I think thats a bunch of crap, but if it exits, he did it here!

I say Great Job by the Defense attorney who kept his mouth shut. I am trying to learn how to do that myself.

Anonymous said...

What really pissed off the Judge and any Judge for that matter is making a verbal outburst in front of the Jury. Regardless of his previous objections that outburst is gonna cost him a bar complaint.

You do not make outburst in front of the jury. EVER!

Anonymous said...

THe prosecutors is the bad guy here.

I read the transcript. He had all kinds of options.

He had all kinds of opportunities.

Lebow was right.

Anonymous said...

The ASA could have called witnesses without prejudice since they were subject to recall when the evidence arrived. There were plenty of questions that he could have asked as preliminaries or background question to set the stage and kill time till the evidence arrived. hy he didn't do so is a good question.

He was concerned about the admissibility of certain evidence and was worried that he could cause a mistrial, but, what's worse for the state? A mistrial? Or a JOA?

Perhaps, the problem is that the ASA had forgotten what the evidence was and was planning on looking at it right before trial to come up with a theory of the case.

The ASA was also wrong in stating that he represented the victims. I din't know if he really believed that or was just saying it for dramatic effect, but it was not correct.

I think that Judge Lebow was too patient. She took 6 hours to do what Morphonios would do in less than 5 minutes.

Anonymous said...

Some of you are such hypocrites. If the judge did the same thing to a defense attorney, you'd be going nuts. What she did is inexcusable, regardless of the prosecutor's behavior (I don't care what Morphonius did). As valuable as I'm sure Lebow's time is, I don't think a couple of hours is worth a death penalty homicide case's dismissal.

Some of these judges (Lebow included) need to learn that court is not a game and this isn't a battle of egos and power. Their decisions affect us all. Again, if an attorney does something inappropriate, punish the attorney, not the community.

BTDT

Anonymous said...

Rumpole,

Slyvestre Peter (we know him as "Peter Camacho") Adrien (this guy has more names than some witness protection participants)got his 5th w/hold on traffic tickets since becoming a judge today. He has withholds on such things as Failure to Yield to an Emergency Vehicle, 89 in a 70 and this time 56 in a 30. The cop described Sylvestre as "a dick" who tried to tell the cop that he did not have the jurisdiction to give him the ticket. Then asked the cop if something could be worked out.

I don't care if it is Swartz (my preference) or Ruiz-Cohen who beats this guy, but Slyvestre has to go.

Oh yeah, only 327 more days and Sylvestre is unemployed.

Anonymous said...

With these non-DUI cases going straight to trial settings are the FHP troopers still on one hour standby?

CAPTAIN said...

THE CAPTAIN REPORTS:

ELECTION UPDATE, NORTH OF THE BORDER .....

Frieda M. Goldstein has just filed in Group 6 against incumbent Judge Carlos Rodriguez.

What the heck is going on up there in Browierd? It is seriously starting to look like they will have more incumbent challenged races than good ole Miama (Ben Kuenhe) Dade County.

Haury, Destry, Porter, O'Connor, Skolnik, Merrigan, Hurley, Pratt, Seidman, and now Rodriguez; by my count that makes at least 10 incumbents in broward that have drawn opposition in the upcoming election.

Miami-Dade has three: Adrien, Seff and Walsh.

Cap Out ....

Anonymous said...

Hey Thursday, February 11, 2010 12:54:00 PM

You are a liar were is the proof!

Anonymous said...

To 5:27:
Fong Foo is a completely distinguishable scenario. In Foo, government witnesses in fact did testify and the court determined that they were not credible. Had Lebow heard the testimony of the state witnesses and found them to be not credible, she could have granted a JOA. However, here, none of the state witnesses testified. One of the most basic and fundamental premise of our jurisprudence is that cases are to be decided on their merits and not the whim of a Judge. This case is a classic example of a such situation. Look at it the other way, if the defense had asked for a continuane because they did not have access to evidence and the judge had forced a trial, a conviction would have been reversed in a heartbeat. State is entitled to no less.

CAPTAIN said...

THE CAPTAIN REPORTS:

to 12:54 and 3:20 PM

I cannot confirm everything that 12:54 pm has written. In Dade, Judge Adrien, in the past ten years, has six citations. Four of those he received since becoming a Judge.

12:54 does seem to know some of what he is talking about as Judge Adrien had Court today on his Speeding ticket issues 9/29/09 for 56 in a 30. He was fined $292.

Also:

Issued 9/4/09 FTYROW was dismissed/officer

Issued 12/16/08 OP Veh Unsafe Cond was dismissed/complied

Issued 9/13/07 Fail Stop Steady Rd Lt was dismissed/officer

Issued 5/11/01 Fail to Obey Traf Ins Sign. He paid $94.

Issued 2/22/09 Fail to Obey Traf Ins Sign. He paid $76.20 and four hours traffic school.

I do not know where 12:54 is getting his other information from about a "5th withhold since becoming judge", he did get the FTY to Emergency Vehicle ticket, but it was dismissed, and I did not see the 89 in a 70 ticket.

I only checked Miami Dade County and not the rest of the State.

Cap Out ....

Anonymous said...

Thursday at 4:00:
Of course Fong Foo is distinguishable factually from Judge Lebow's case. But the state is hardly better off when it refuses to present any witnesses than when it presents witnesses lacking in credibility. Further, you miss the controlling legal point, which is common to both cases. That is, that a judgment of acquittal based on insufficient evidence, entered after jeopardy has attached, is final. Period.

From Smith v. Mass.: "an acquittal, once final, may not be reconsidered on appeal or otherwise." Yet another Supreme Court case states that "the most fundamental rule in the history of double jeopardy jurisprudence" is that a verdict of acquittal can not be reviewed. U.S. v. Martin Linen.

You ask what would have happened if the shoe had been on the other foot, but surely you know the rights of a defendant and of the state are not the same in a criminal case. The Fifth Amendment Double Jeopardy Clause protects defendants. The state has no such constitutional protection.

Apart from the Fifth Amendment, it is also well-settled that a state has no constitutional right to appeal in a criminal case. Its right to appeal is governed by statute. Look at section 924.07. The state does not have a right to appeal a judgment of acquittal entered after jeopardy has attached.

That case really is over.

Anonymous said...

BTDT - you are a straight chump in
making excuses for this ASA. If he did the trial previously, he should have known his case. If the case was specially set, he should have done a lot more than just pass a note to the Clerk requesting the evidence. He could have gone to the 4th DCA himself and inspected the documents. He clearly should have requested them more than the Wednesday before trial. He should have kept his own copies of what he needed. He should have told the Judge that there were motions in limine that needed to be addressed prior to selecting the jury. He should have
made sure the evidence was available before announcing ready for trial. The list could go on and on.

Anonymous said...

Judge Adrien, needs to hire a better traffic ticket lawyer.

2009, he got traffic school. Way to go.

Anonymous said...

What this case shows is the arrogance of the prosecutor (Rossman) which unfortunately is a part of the arrogance of that office. Should Judge Lebow given him a little more leeway? Probably. But ultimately the judge is the boss, even if wrong, and she ordered him to proceed. For him to refuse to do so is unconscionable.

Anonymous said...

Sylvestre has tickets in Collier, Palm Beach and other counties. They are there. You have to see his full transcript.

Anonymous said...

Dear Sylvestre at 3:20 p.m.

I'll tell you what, ask the Seargent who gave you the ticket. If he publicly states that the things I have said are inaccurate I will come forward and reveal who I am. Otherwise don't challenge someone who has spoken with him and knows.

You should have been reported to the JQC for your conduct.

Anonymous said...

To 7:03, knowing this about the JOA/DJ case law, don't you think this should have impacted Lebow's decision making? To dismiss the case, she must have known that there would be no way that the state could appeal this, making her decision that much worse.

She is punishing the community, and most importantly the victim's family, for the actions of a prosecutor. And in the grand scheme of things, is it worth it to punish that victim's family, just so the Judge can assert that she is top dog in her courtroom? No! If it was your family member who had allegedly been murdered wouldn't you be pretty pissed that the judge just threw the case out permanently for what amounts to a professional penis measuring contest?

Regardless of whether the prosecutor was an idiot (and he was, and is deserving of sanctions), BTDT is right. There are other ways to deal with it, and she should have used contempt, or sanctions, or the Florida Bar to make her point. Had she done that she would be punishing the party that deserves to be punished, rather than an innocent bystander.

Anonymous said...

7:47-----obviously you can't read. I've repeatedly said that I'm not commenting on the prosecutor, but the judge. Are you really a lawyer?

For the fourth or fifth time, I'm saying that the judge's conduct was inexecusable regardless of the prosecutor's diligence or lack thereof. You don't punish the community because a prosecutor does a poor job. If the prosecutor does a lousy job or is contemptuous (which some of you allege), by all means punish him. But, don't screw the community or victim(s), especially in a homicide case. Is that simple enough for you?

BTDT

Anonymous said...

To 4:34 a.m.
7:03 here. I fully agree with you, and have agreed all along with what BTDT has said about this situation. What Lebow did was within her power, but that doesn't make it right. I work on the criminal defense side but am still a citizen first and, as such, am most unhappy to see an accused murderer allowed to walk away from charges because the judge and prosecutor each insisted on behaving immaturely. I just wrote to point out the truly severe consequences of Lebow's actions. It really goes to show that a judge has to, AT ALL TIMES, be dispassionate and neutral when ruling from the bench.

Anonymous said...

Re-check the transcript. Bad behavior aside, the Defendant did not "walk free". I believe he was looking at life on the probation violation.
I doesn't excuse the fiasco, but let's acknowledge reality before making accusations of "allowing a murderer to walk free".

Anonymous said...

I think BTDT is a douche.

Anonymous said...

Cap, whats the truth on his?

Sylvestre has tickets in Collier, Palm Beach and other counties. They are there. You have to see his full transcript.

Thursday, February 11, 2010 11:36:00 PM


Cap do some legal work here...

Anonymous said...

both were right and both were wrong, the conduct was unprofessional and reduces the public's image of the justice system and the judiciary. an unprepared prosecutor and an unreasonably unyielding judge engaging in an ego driven sparring match while a victim's family wonders how could this be happening? a life was lost and another hung in the balance and this result is what is left in the wake of an event where no participant deserves any praise. the law favors resolution on the merits and society expects it. this is a black eye, and today i am embarrassed of my profession.

Anonymous said...

Friday 1:29 p.m.
What comment are you referring to? No one in the comments above yours made any accusations about "allowing a murderer to walk free" as you quote it. There's no question that the defendant had already received a life sentence for violating his probation. But the first degree murder charge was a different case, and one where he potentially faced death. At the least, the victims' families deserved to see him go to trial. Instead, because of Lebow's actions, the defendant really was allowed to walk away from a charge of first degree murder. There's nothing wrong with acknowledging THAT reality. It should never have happened.