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

Wednesday, May 19, 2010

3rd DCA ROUNDUP-WOOPS HE DID IT AGAIN EDITION

You know him, you love him, you can't live without another reversal of a trial he presided over. We are speaking of course of the embattled Judge Peter Adrien and yet another reversal, this time in the trial Judge Adrien presided over in Foster v. State.

Foster was charged with first degree murder, attempted second degree murder, and a host of other accompanying charges. His attorney properly filed a notice of alibi with the names of witnesses, a year and a half prior to the start of the trial. The normal parade of Assistant State Attorneys came and went, and lo and behold once the trial began, the current ASA decided to read his/her file and was shocked to find a notice of alibi with the names and addresses of witnesses. This being the courtroom that it was, the best defense was a good offense and the prosecutor demanded the defense attorney produce the witnesses for trial the next day. The defense attorney couldn't do it, and Judge Adrien struck the notice, and prevented the defense from calling alibi witnesses, including at least one witness who was prominently mentioned in the police reports. What's the big deal about actually getting to the truth of a case when faced with the ability to use procedural rules to deprive the defendant of a fair trial? "We who labor here seek only truth- unless we can figure out a way to convict you without getting to the truth."

Well thank goodness for Attorney Rafael Rodriguez for the defense on appeal, as well as 3rd DCA Judges Gersten, Shepherd, and Lagoa, who held that exclusion of the witnesses was an improper sanction.

Here's the rule in the unlikely event you ever find yourself in a similar situation with the same players: The Florida Supreme Court has established a two-step analysis to determine whether a trial court properly excluded defense witnesses pursuant to Rule 3.200: (1) whether there was in fact a violation of the rule, and (2) if so, whether good cause exists to waive the noncompliance. Small v. State, 630 So. 2d 1087, 1089 (Fla. 1994).

Reversed for a new trial.


We'd really like to leave it at that except for a disturbing decision that has repercussions for those of us who kinda like the 4th amendment.

In State v. Carreno Judge Ward catches a reversal in a case where she granted a motion to suppress after another Judge issued a search warrant for a suspected Marijuana grow house.

A Judge that reviews a search warrant issued by another judge must pretty well deny the motion unless Martians land at the courthouse and tell her otherwise:

It was the reviewing court that failed to apply the proper standard, one of “great deference,” to the original judge’s determination. See Spinelli v. United States, 393 U.S. 410, 419 (1969).


For the Judge that issues the warrant the standard is rather low: To reiterate, “it is the ‘probability, and not a prima facie showing, of criminal activity [that] is the standard of probable cause.’” Doorbal v. State, 837 So. 2d 940, 952-53 (Fla. 2003)


For the Judge that reviews the warrant, the standard is shockingly low:


However, in reviewing a prior determination of probable cause and the issuance of the search warrant, the reviewing court must “accord[] ‘great deference’ to a magistrate’s determination,” even in a marginal or doubtful case. United States v. Leon, 468 U.S. 897, 914 (1984) (citing Spinelli, 393 U.S. at 419); see United States v. Lockett, 674 F.2d 843, 845 (11th Cir. 1982). In fact, “once a Magistrate has found probable cause and has issued a warrant, his judgment is conclusive unless arbitrarily exercised . . . .” United States v. Giacalone, 541 F.2d5508, 513 (6th Cir. 1976). Therefore, “the trial court should not disturb an issuing magistrate’s determination absent a clear determination that the magistrate abused his discretion in relying on the information in the affidavit supporting the warrant application to find probable cause.” Woldridge, 958 So. 2d at 458 (citing State v. Price, 564 So. 2d 1239, 1241 (Fla. 5th DCA 1990)). To that end, the trial court, when reviewing the issuance of a warrant based on a probable cause affidavit, “does not conduct a de novo determination of whether there was probable cause to issue the warrant. Instead, the trial court determines only whether substantial evidence supported the magistrate’s determination that probable cause existed.” Woldridge, 958 So. 2d at 458 (citing Bonilla v. State, 579 So. 2d 802, 805 (Fla. 5th DCA 1991)).


Rumpole says: Ouch.


30 comments:

Anonymous said...

I've never been in front of Judge Adrien, but he just can't seem to get anything right. What's his history? Was he appointed or elected?

Anonymous said...

THe case where Adrien was reversed seems so obvious. The 3rd DCA should fast track all of his cases for immediate review. Something akin to "Speedy Appeal." Justice delayed is justice denied in the cases he presides over. Is there such a JQC standard for outright incompetence? Or is all that is required is 5 years and a bar card?

eye on Petey said...

Adrien was a legal aid lawyer- he was unable to get any other job - and if he says otherwise I have his job apps. He ran for election and got his ass kicked. Two years later he ran for election against Judge Henry Harnage and added the name "Camacho" to his ballot on the ridiculous theory it was his mother's maiden name. He beat Harnage and now we have him.

The most enlightening aspect of his putative attempt to get reelected is that he now cites his "experience" as a Judge as a reason to re-elect him. If that was the case, he should have never run against Harnage since he never ever tried a jury trial before he was elected.

But of course hypocrites will say and do anything to get elected or reelected.

Anonymous said...

This was a stupid ruling by Judge Pete, but the prosecutor was AT LEAST as stupid, if not more so, for asking the judge to strike the defense witnesses. The prosecutor who made this request is a moron.

CAPTAIN said...

Reprinted, with permission from The Captain.

Wednesday, March 17, 2010 11:47:00 PM


In 1996, Henry "Hank" Harnage was appointed a Circuit Court Judge by then Governor Walkin' Lawton Chiles. Two years later, in 1998, Harnage was elected to a full six year term. (He beat Elio Vasquez).

In 2000, Peter Sylvester Adrien ran for Circuit Court Judge in a four way race. He ran using his legal name. In the primary, Gina Mendez scored 40% of the vote; Dennis Murphy was second with 29% of the vote; Martin Zilber pulled in 25% of the vote. Adrien garnered 6% of the vote.

In the runoff, Murphy squeaked by Mendez with 51%, winning by a mere 12,000 votes.

Four years later, Adrien crossed paths with Harnage. At 11:58 am on the final day of qualifying, with two minutes to go, Adrien filed against Harnage. Only this time he ran under the name Peter Camacho Adrien. Camacho was his Portuguese mother's maiden name. He told the press back then that he attributed his loss in 2000 to the confusion with the Sylvester name.

In the 2004 election, incumbent Harnage got swamped by Adrien 57%-43%.

Governor Jeb Bush returned Henry Harnage to the bench as a Judge of Compensation Claims to serve in the Miami District where he sits today.


CAPTAIN OUT .....

Anonymous said...

Re: Adrien was a legal aid lawyer- he was unable to get any other job - and if he says otherwise I have his job apps...
Let me see if I've got this right - if you are a legal aid lawyer - does that mean you are "unable to get any other job" ... is the standard the same if you are a state attorney or a public defender ? So - anyone in public service is there because they are "unable to get any other job" ... Your statement is arrogant and lame.

Anonymous said...

Where is the ouch? That is clearly the law today and had been for over 20 years. Guess you don't have pocket parts in rump land.

South Florida Lawyers said...

Judge Harnage -- great guy.

Kissimmiee Kid said...

Love the 4th; can't fault the holding. Searches with warrants are not unreasonable.

Anonymous said...

It is time to establish the Criminal Defense attorneys against Monica Gordo campaign. Anyone signing up?

Long Live Camacho said...

Peter Adrien is just misunderstood. And although 99.999%of the electorate couldnt pick him out of a two person lineup (with the other being the Geico Gecko), he'll probably get elected again.

Oy vey.

Well at least the 3rd DCA will be busy.

fake alschuler said...

I hereby resign my position as Fake Alschuler. I can't make an f'ing dollar in this role. I submit at least a comment a day, and get one a month published. The character is lame to say the least. I will be on the Key West blog as Fake Capt Tony and a San Luis Obisbo blog as Judge Barnaby.

See Ya.

Batman said...

Why is this disturbing to you Rump? The trial court cannot consider information not available to the issuing magistrate. This is nothing new.

The issue is, as the court stated, whether there was substantial enough evidence before the issuing magistrate to establish the probablity of crminal activity. The issue is not what you learn later, but what you know at the time.

Absent evidence of fraud by the affiants, second guessing the issuing magistrate emasculates the process.

Anonymous said...

I think Herb Walker was the Adrien's division chief and was the ASA who tried that case. That is a combination that has REVERSED written all over it.

CAPTAIN said...

THE CAPTAIN REPORTS:

So you want to be a Circuit Court Judge .....

The JNC has reviewed 19 applications and has narrowed the list to 11 persons that will be interviewed.

Here is the list of those that will be interviewed:

Miguel de la O
Robin Faber
Robert Galt III
Darrin Gayles
Andrew Hague
Patricia Kopco
Robert Kuntz Jr.
Bronwyn Miller
Rodney Smith
Lisa Walsh
Deborah White Labora

Here is the list of those that did not make the cut

William Altfield
Ofelia Damas Rodriguez
Gary Gorday
Steven Grossbard
Gordon Murray
Gladys Perez
Jeffrey Swartz
Marie Jo Toussaint

Interviews will take place on June 2, 2010.

Once again, instead of complaining about which names get sent up to the governor, why not share your thoughts with a JNC member.

Contact Chair Mark Romance
305-373-4048
mromance@richmangreer.com

or any of the other JNC members:

Gonzalo Dorta
Philip Freidin
Manny Kadre
John Kozyak
Rayfield McGhee
Andres Rivero
Daniel Schwartz

Oh yeah, message to the poster of 5/12/10 at 10:57 am - stick to your day job.

"And the Governor is going to appoint Gladys Perez. Who do I know, look at who didn't apply. They knew the fix was in and didn't waste their time."

Wednesday, May 12, 2010 10:57:00 AM



Cap Out .......

Rumpole said...

I think what disturbs me is the language that "even in a marginal or doubtful case" the issuing magistrate's decision cannot be disturbed unless you can show the magistrate acted arbitrarily.

What this means to me is that unless I can show the judge flipped a coin and said " heads I sign it, tails I don"t" I can never under any circumstances show a lack of PC and get the warrant reversed. So theoretically if an affidavit to a warrant said something like "the officer believes there is marijuana in the house because the owners have long hair and that indicates to me they are growing marijuana" AND a magistrate like- well not to mention any knuckleheads but you know who I mean- decides after giving it due thought and without making an arbitrary decision to sign the warrant- that is sufficient to withstand a challenge.

The standard is way too high. Make it "great deference" or something like that, But any warrant signed other than one signed arbitrarily gives the issuing Judge way too much latitude. They rarely say no as it is.

Anonymous said...

The Captain has reported. Let the bashing begin!

Anonymous said...

As to State v. Carreno, the hoary cannon of judicial review, to wit, stare decisis et non quieto movere, is what saves us from never having a definitive ruling. Especially with egos like that possessed by Judge Ward, whom I like and admire but whom I also know to never have been cursed with one whit of self-doubt, those things which have been settled must remain so. In addition, there must be more here than meets the eye because the facts very much appear to support PC.

RFB said...

Peter Adrien.....

FEY!

Anonymous said...

8:58 AM, you hit the nail on the head. Adrien was beyond stupid for buying the argument. As to the ASA who tried the case, don't you know to:

1) Always check your files carefully for defense pleadings, including witness lists. I did this even then I was a C. There is NO excuse for a DC not carefully checking his/her files for the same.

2) Whenever you change divisions, you need to bust your ass for a few weeks getting familiar with your caseload. I always knew a promotion meant that I had about three or four weeks of serious work ahead of me.

To the ASA--you fucked up big time.

To Judge Adrien--why did you buy such a bullshit argument that sounds like it was presented by My Cousin Vinny.

Batman said...

Rump,

I understand your frustration. It is not like most of us have not looked at a warrant, after the fact, and said what the officer believed at the time, or shall I say swore to at the time, was inaccurate. The burden has to be that high, otherwise the whims and fancies, albeit the judicial leanings, of the reviewing court would take precedence.

As much as it may be repitious, I fall back on the same quote by Potter Stewart I used the other day in the debate over the Foster decision:

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it ..."

The standard for determining the probable cause for the issuance of a warrant has to be subjective. I can not see any way around it.

Anonymous said...

My top picks

Miguel de la O
Robin Faber
Darrin Gayles
Andrew Hague
Robert Kuntz Jr.
Bronwyn Miller
Lisa Walsh
Deborah White Labora

Toy Story said...

This opinion from Exile & Bloom v. Miami-Dade County seems so so.

"As the trial court held in an excellent opinion, we conclude that Section 21-281 of the Miami-Dade County Code, which prohibits convicted sexual offenders from residing within 2500 feet of a school, is not invalidated by Florida law and therefore remains in full force and effect. Neither of the appellants’ contentions to
the contrary is well taken:
(a) The legislature has not clearly preempted local regulation of the field of sexual predators, so as to invoke the severely restricted and strongly disfavored
doctrine of 'implied preemption.'"

However, HB 119 is with the Governor. If he signs it, then as of July 1, 2010, the Miami-Dade Ordinance will be pre-empted and this decision will be legislatively overruled.

Anonymous said...

Former ASA here,

Note to current ASAs. Before you start a trial on a serious case, which has passed through the hands of many ASAs before you, do a couple simple things.
1. Look through the CJIS entries. Maybe you see little details like NOTICE OF ALIBI or DEFENSE WITNESS LIST. I would estimate that this would take all of ten minutes from your CJIS access on your fancy in-court laptop or from your desk.
2. LOOK through the court file once in a while. Maybe you see shit in there you dont have in your file like NOTICE OF ALIBI or DEFENSE WITNESS LIST. Once again, maybe ten minutes. Ten minutes over the course of three years. This is not a HTO case, its a murder trial.

And ASAs need to be more aware not only how to get convictions, but how to keep convictions. To ask for the striking of witnesses during trial because you didnt get to depose them the day before- when you failed to do it during the prior eighteen months? You were just asking for the 3rd to reverse this case. ASAs are too obsessed with things like striking defense witnesses, getting in too much Williams Rule crap and blocking defense strikes during jury selection. And those are probably the top reasons why cases get reversed for trial related issues.

CAPTAIN said...

THE CAPTAIN REPORTS:

Maggie Rosenbaum & Andrew Kassier, in the news .....

Last week it was Mr. Kassier and today it's Ms. Rosenbaum.

The police arrested Victor Gonzalez on Monday, charging him with Extortion, after he sent a threatening letter to General Magistrate Margaret Rosenbaum. In the letter, he accused his attorney of requesting thousands in cash to bribe Rosenbaum and award full custody of his son to him. He gave Rosenbaum an ultimatum in the letter: resign from her position within 45 days or he'd go to police and The Miami Herald with audio and video proof of her and his lawyer's corruption.

Rosenbaum immediately reported the letter to authorities and they took over from there.

It appears Gonzalez was unhappy with several of Mag. Rosenbaum's rulings. Her latest ruling ordered Gonzalez to submit to a hair follicle test to determine whether he was using cocaine and/or marijuana. She also ordered him to begin paying the $42,193 in back child support that he owed.

And Andrew Kassier's face was all over the news recently ....

Jury selection began on May 11th in the retrial of Ana Maria Cardona, accused of the notorious 1990 baseball-bat beating death of her toddler son, known as Baby Lollipops.

Cardona, 49, is accused of murdering 3-year-old Lazaro Figueroa. When detectives found the child, at first not knowing the boy's name, they called him Baby Lollipops, based on the design on his T-shirt.

Jurors convicted Cardona of first-degree murder in 1992 and she was sentenced to death. But the Florida Supreme Court overturned the conviction in 2002, saying prosecutors had improperly failed to share with the defense interviews authorities had conducted with the chief witness, who gave conflicting accounts of the boy's beating.

That witness was Cardona's girlfriend, Olivia Gonzalez, who served 15 years in prison for her role in the boy's slaying. She was released in 2008.

The ASA back then was Cathy Vogel. And the SAPD was Andrew Kassier.

The case is in trial before Judge Reemberto Diaz. Susan Dannelly for the State; Edith Georgi for the defense.

Cap Out ....

CAPTAIN said...

THE CAPTAIN REPORTS:

So, you want to be a County Court Judge .....

The JNC has announced that they are now accepting applications to replace Judge Joe Fernandez (who was elevated to the Circuit Court last week).

Applcations are due by June 21, 2010. An original and lots and lots of copies go to Mr. Romance, whose name and contact information have been appearing regularly on this blog.

Cap Out .....

Anonymous said...

I checked the online docket and the trial ASA was none other than Herb Walker.

RFB said...

Judge Petey Adrien- FEY

Herb "love deem feet" Walker- DOUBLE FEY!!

F U Piehole... You've been Walkernated! said...

The "Walkernator" is the best trial attorney that has walked this earth, whether prosecutor or defense attorney.

He was probably less thinking about the law and more thinking about matching his tie to his socks and gargling with hot water and lemon so that his voice could be as dreamy as he imagines hearing it in his mind.

Blown up a structure lately while reflecting on Dar es War? Call the Walkernator, the Q is afraid the Walkernator is stealing all his clients.

You can't tell the Walkernator how to try a case. The Walkernator has likely beaten the Trialmaster, many many times and you better watch out, he will beat you too!*

*Rule 3 motion, emergency writ or appeal notwithstanding.

Anonymous said...

So yo, Cap, how come Cardona had an SAPD before, and a PD now? Isn't Georgi a PD?