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. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Wednesday, March 03, 2010

3rd DCA ROUNDUP -"TO PUT IT MILDLY" EDITION

A very tragic case starts us off today:

Stephenson v. State: This is a tragic case in all respects. A young woman with no priors gives birth to a very premature baby, who had numerous serious medical issues concomitant with being born premature. The woman was convicted of aggravated manslaughter of her child via the theory that she neglected the child who starved to death. The court reversed and ordered a new trial. Held- abortion is one of the most hotly contested issues of our time, and crossing examining the woman as she testified that she had considered aborting her child prior to birth constituted fundamental error. The prosecutor compounded the error by raising the argument in closing argument.

Practice tip: fundamental error, for purposes of granting a new trial, means an error which deprives a party of a fair trial or an error which objection or a curative instruction could not correct; such error gravely impairs the dispassionate and calm consideration of the evidence and merits by the jury.



What, pray tell, exactly is reasonable suspicion sufficient for a police officer to stop someone and commence an investigation?
Glad you asked, because senior Judge Schwartz has the answer for us in

"The existence of a reasonable suspicion is based upon specific and articulable facts, and the rational inferences that may be drawn from those facts.”); State v. Arango, 9 So. 3d 1251 (Fla. 3d DCA 2009); §901.151(2), Fla. Stat. (2007) “Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state . . . the officer may temporarily detain such person . . . ."



Judge Tunis, to "put it mildly" catches a good old fashion trip to the woodshed by our favourite senior Judge:


"The contrary conclusion, which seems to have been indulged by the trial judge, amounts to a finding not only that the defendant’s actions in accompanying, following, and waiting for Marcos and then attempting to flee when he was apprehended were completely innocent and the connections to the drug deal completely coincidental, but that the police were unreasonable as a matter of law in thinking otherwise. To put it mildly, that conclusion is unacceptable."



WALL OF SHAME:

Rosa Rodriguez here.



We removed an item in yesterday's comments section that mistakenly listed a former ASA as being involved in a Ponzi scheme. We didn't post it and we are sorry it could not be removed sooner but we've been traveling for a few days now and internet access on this forsaken continent is shaky at best.

HR.

20 comments:

Anonymous said...

Rump, what? No headline about judge Ana Gardiner up in Broward canodeling with the prosecutor in her 1st degree murder case and sentencing the defendant to the ultimate penalty? That's way more important. I hope to see a story about it tomorrow.
what a shame that this a-hole is getting a second trial because the judge and the prosecutor did not reveal their "relationship" to the Defense.

Anonymous said...

Are you growing soft in older age? There was a time you'd give a judge some credit for doing what they thought was correct in suppressing drugs in a trafficking case. A tough decision to make. Surprised you don't give a nod to Judge Tunis, just for the guts it took to follow the law she was given. Obviously the 3rd disagreed in this case and seems to cite contrary law. What gives Rumpoleon?

Anonymous said...

Now tell me why Schwartz had to be such a jerk in criticizing Tunis' decision? Is that really necessary?

Anonymous said...

what the f happened to the florida bar website?

CAPTAIN said...

My apologies to Mr. Gasten I. Cantens for identfying him as such. It is his father Gasten E. Cantens who the SEC has leveled the allegations against. Again, my apologies for the error.

Cap Out....

Anonymous said...

Now apologize for ending a sentence with a preposition.

We'll omit any discussion of your mother's Golden Rule.

Anonymous said...

Your favorite 3rd dca judge once prevented one of your favorite lawyers from reserving opening statement in a very serious trial. He was not a good trial judge back in his day.

Anonymous said...

Regarding the Stephenson case, both the prosecutor and the defense attorney should be nominated for Legal Dumbass of the Year. The prosecutor for introducing evidence that the defendant had considered an abortion--the opinion bears that out. The defense attorney also deserves this award for failing to object to this questioning and the prosecutor's closing argument. Some objections at trial are, no pun intended, a judgment call. But this is one that ANY half-assed trial lawyer should have made.

Anonymous said...

I wanted to let you know of the passing of Michael Voigt. http://www.legacy.com/obituaries/herald/obituary.aspx?n=michael-voigt&pid=140219227 Thgis is the obituary:

CAPTAIN said...

to 11:32 pm:

According to The Florida Bar, "access to our Web site is currently being affected by an incorrect DNS record on the Internet."

The Domain Name System (DNS) is a hierarchical naming system for computers, services, or any resource connected to the Internet or a private network. It associates various information with domain names assigned to each of the participants. Most importantly, it translates domain names meaningful to humans into the numerical (binary) identifiers associated with networking equipment for the purpose of locating and addressing these devices worldwide. An often used analogy to explain the Domain Name System is that it serves as the "phone book" for the Internet by translating human-friendly computer hostnames into IP addresses. For example, www.example.com translates to 192.0.32.10.

So, the real question you need to be asking is: Does Jack have anything to do with this? ;)

The site is back up and running but subject to problems for the next 24 hours; so says TFB.

Cap Out ....

the trialmaster said...

I was saddened to see that former asa and defense attorney Michael Voight has passed away. I had several trials with him when he was at the sao. He was a pleasure to work with. I saw him not so long ago at one of infrequent trips to the justice bldg. my sympathy to his family. the trialmaster

Anonymous said...

John Roberts to step down. You heard it here first 3/4/10 at 12:55pm

Anonymous said...

If Judge Schwartz is going to insist on thumping his chest so, he should probably proof read the opinion to make sure the case cites are properly underlined or italicized.

Anonymous said...

One of these days the public will start paying attention to judicial races and the judges themselves and stop voting their ethnicity, race, religion or gender. One of these days truly qualified people will be elected and appointed, not just the ones who are popular, pretty or fit in with the crowd. One of these days people like Levy, Gardiner, Adrien, Zabel, R. Rodriguez, Eig, Pozo, Johnson, Pando and others who lack the legal and ethical inner core will not find their way to the bench. I believe that someday lawyers will learn to appreciate intellect and ability over all else. But then again I believe that someday we will have world peace and Rush Limbaugh will see the light and become a liberal.

CAPTAIN said...

THE CAPTAIN REPORTS:

REALLY NORTH OF THE BORDER ....

JUDGE JOHN KASTRENAKES ...

Browierd has two judges in the hot seat and now our old friend and colleague John Kastrenakes has had a run-in with the Florida Highway Patrol.

Here is what the Herald is reporting:

Bitter over traffic tickets he received in September, an inflamed Palm Beach County Circuit Judge John Kastrenakes lashed out at a Florida Highway Patrol trooper and said ``he would always have doubts when a trooper appears in his courtroom,'' according to a report.

The confrontation shows bias against FHP and should disqualify him from presiding over a case made by the agency, the Palm Beach County state attorney's office argued in a recent motion.

Reached Friday, Kastrenakes said, ``I cannot comment on anything pending before me.''

About 12:30 a.m. Sept. 18, a trooper stopped Kastrenakes in the Florida Turnpike's Lake Worth service plaza and cited him for driving the wrong way in a one-way parking lot and for lacking proof of insurance, records show.

Kastrenakes -- a former federal prosecutor in West Palm Beach and former state and federal prosecutor in Miami-Dade -- who was appointed to the bench in May by Gov. Charlie Crist, became increasingly irate, troopers said later.

His Palm Beach County ID badge dangled from a lanyard around his neck as he got out of his gray Lexus and argued with trooper Sandra Thompson.

He told her he would dismiss any case she brought before him in court because ``he knew she was a liar,'' according to an FHP report filed Feb. 10, almost six months after the incident.

``He also stated that if this is the type of tickets that troopers write, he would always have doubts when a trooper appears in his courtroom,'' the report said.

......

Kastrenakes "stepped out of line on the turnpike in September", Assistant State Attorney Ellen Roberts contends in a motion filed Feb. 19.

Roberts charged that Kastrenakes ``attempted to use the prestige of his judicial position to influence and gain advantage'' over the trooper who ticketed him.

``The alleged conduct and comments by Judge Kastrenakes clearly demonstrate an unequivocal bias and unfavorable opinion of the Florida Highway Patrol troopers,'' Roberts wrote.

The motion argues Kastrenakes should disqualify himself from a felony case against Andrew Morgan. In December, FHP arrested Morgan, 35, on charges of perjury in a driver's license application and obtaining a driver's license by fraud.

To read the entire story, go here:

http://www.miamiherald.com/2010/03/04/1511608/palm-beach-county-judge-under.html

Cap Out ....

Anonymous said...

Maybe Judge Schwartz could tell just how rude and offensive Dava Tunis really is but, keep in mind that this comes from a man who is famous for his rude and offensive antics on the bench. Thanks to good old Alan Schwartz, the 3rd DCA now has video cameras recording oral arguments.

Anonymous said...

Pro se defendant won an attempted murder with a firearm trial today in front of Scola. Take that SAO!!

Anonymous said...

RadarOnline.com has been told that Roberts, 55, could announce his decision at any time.

The decision paves the way for President Barack Obama to make his second appointment to the U.S. Supreme Court following his first, Sonia Sotomayor.

..........

John Roberts, Chief Justice of the United States Supreme Court, is seriously considering stepping down from the nation’s highest court for personal reasons, RadarOnline.com has learned exclusively.


Roberts, known for his conservative judicial philosophy, has served on the Supreme Court since 2005, having been nominated by President George W. Bush after the death of former Chief William Rehnquist.

............

Update: RadarOnline.com has obtained new information that Justice Roberts will NOT resign. The justice will be staying on the bench.

................

RadarOnline.com sucks!

Anonymous said...

Chief Justice John Roberts is not stepping down from the Supreme Court, despite a celebrity gossip report, a source very close to Roberts told Fox News.

RadarOnline.com reported Thursday that Roberts, 55, would be resigning for personal reasons.

But the source said the report is "completely untrue." There is "no medical issue, no issue at all," the source said, adding that there is not even a 1 percent chance that Roberts is considering resignation.

RadarOnline.com later published an update saying that Roberts will be staying on the bench.

Anonymous said...

To 3-4 @ 6:34,

your comments are ridiculous and untrue. Did you lose a motion in front of Judge Tunis or come to court unprepared? She's one of the hardest working judges in the building and is nice and gracious to attorneys and clients. When I sit in there I see her say goodmorning, acknowledge each defendant by name, etc. Plus she gives a great trial.

So she got reversed, that's what this is about. She suppressed a trafficking amount of drugs against the person who wasn't involved in the deal, the police didn't know who he was and he stayed in his car. The Third said she was wrong. End of case. her demeanor which is pleasant and welcoming, has nothing to do with it. How many judges would have even granted the motion (though the Third said she was wrong to do so.)

If you think SHE'S not nice, have you ever been in front of any other judges? Your comments sound vindictive and are untrue. She's a pleasure to practice in front of.