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Wednesday, May 26, 2010

TRY IT AND LOSE IT

For those of you who have never been in a courtroom as a trial lawyer, (and yes that includes most of you robed readers) have you ever wondered what really bothers us about Broward?

No it's not the horrible parking, or the sanctimonious Judges who in the past would blatantly discriminate against attorneys from Dade and their clients.

No, the real problem with Broward was the SAO and their "I'd rather try it and lose it" then make the correct call and dismiss the case philosophy.

You must read the Broward JJA blog's post about just this sort of prosecutorial abuse.

The jury found the Defendant not guilty of the main charge of attempted murder "in about 30 seconds.". According to the post, the charge was increased from Agg assault to attempted murder after a prosecutor took a one minute statement from the alleged victim a few years after the case was filed. The increase in charges occurred after the defendant rejected the initial plea offer. This fact pattern begins to mimic the "seismic change in prosecution" threat made to David O Markus in his defense of a doctor in federal court that resulted in a not guilty and a bar complaint against the prosecution by the Judge after, among other things, the prosecution added over one hundred charges after the defense filed a motion to suppress.

Trying a defendant that a prosecutor knows is innocent, or even bringing to trial a person that the prosecutor knows there is not sufficient evidence to justify a conviction is an offense so odious to the American system of justice that prosecutors who engage in such abuse should be referred to the bar for disbarment. The supervisors who approve of such conduct should be disbarred as well.

The other disturbing fact arising from this story is the prosecution's steadfast refusal to waiver from a three year minimum mandatory state prison offer although the defendant had no priors and never fired his weapon. Compare and contrast that to the waiver immediately given to the wife of the the Fort Lauderdale's Chief of Police after she fired a gun at him. In this case, there was never any allegation that the defendant drew his weapon from his holster (and the defendant had a valid CCW permit allowing him to carry his weapon.)

This whole episode stinks, and the worst stink is that nothing will be done about it in the Broward State Attorney's office.

At a minimum the trial prosecutor and his/her supervisor should be referred to the Florida Bar.






24 comments:

Anonymous said...

To 10:55 yesterday -

Judge Fernandez is a Circuit Court Judge now.
Pretty soon, you'll have someone else to complain about.
But that's if and when Charlie ever makes a decision.

Toy Story said...

Considering the inconsistencies of treatment between those criminal accused who are "connected" and those who have no "connection" or "money" or clout, I agree.

But even so, fair is fair and right is right.

The white hatted prosecutor should not rush to get the conviction at all costs regardless of who the defendant is. That's not their job. There's a fine line between good lawyering and betraying your ethical obligations. Prosecutors have the highest obligations in their positions.

Those who choose to toss those considerations aside for their own personal advancement do so at their own peril. Period.

I can't see how an ASA creatively charges an attempted murder like that could sleep with himself or herself at night.

The Straw Buyer said...

Well said Rump but these shenanigans are alive and well down here in Dade as well. The Asa that was prosecuting one of the cases I've written about (until he was yanked off the case) has admitted the attorney he charged was innocent of one of the charges he filed yet nearly two years later they still haven't dropped the charge.

Anonymous said...

Rump,

I hear you; I do. Broward's policy, assuming it is what you say it is, should end immediately.

But, I hope people recognize that there are prosecutors who uphold the highest values of integrity. When I started at the Dade SAO, they told us of Ms. Reno's saying: "Our first job is to ensure that the innocent are never prosecuted. Our second job is to ensure that the guilty are prosecuted to the fullest extent." I hope I'm getting that right.

I also hope they're still telling new prosecutors that, because it's an important message. The best prosecutors are those who realize that their "client" is neither the cop, nor the victim, nor even the State. While those people are obviously important stakeholders, a prosecutor's client is justice. If you follow that mantra, the job is an easier one.

CAPTAIN said...

THE CAPTAIN REPORTS:

The replacement for Judge Fernandez will not be named by Governor Crist until approximately late August of 2010.

Cap Out ....

Anonymous said...

10:27 the policy in Broward is exactly as they say it is. I have tried about a dozen cases in Broward over 20 years. All resulted in NGs except one hung jury that was later dismissed. In at least three cases I was specifically told "I believe your client is innocent but my supervisor told me my job is try and lose the case. We have to let the jury decide it."

I started asking the prosecutors if they could send me that in writing. One laughed and said he would get disbarred if he did that. I asked him what he thought about an office that made him act in a manner contrary to his oath as an attorney. He didn't have a good answer for it. I started confirming conversations with prosecutors about my client being innocent but eh prosecutor being forced to try the case anyway. I started sending those letters to Mike Satz asking for a response. I never got one. I have never taken the additional step of referring the prosecutor to the bar, mostly because I sort of felt sorry for them. But Rumpole's position has me re-thinking mine.

Anonymous said...

Well let's look at that quote again of the "policy" so to speak:

"It's easier to go to trial and get your ass kicked then spend more time arguing with supervisors who will always say no on a case like this because they're worried about what Satz or Jeff Marcus will say. ASAs have to write detailed memos for a nolle prosse, and everyone fears being labeled a softie or a trial dodger. Being reasonable is perceived as a weakness, exactly the opposite of other places. Careers have been derailed for much less, usually through the case filing division. Oooh, you dropped something. It's all about politics and fear."

The same could be said at the Miami-Dade SAO depending on which Chief Assistant the ASA is dealing with. Howard Pohl being one example.

Or try to imagine dealing with Don "You're Fired" Horn (who probably routinely watches the Apprentice to get the delivery down from "The Donald").

P. Nis said...

Dade or Broward, they're all cut from the same cloth. Idiocy and lack of ethics doesn't recognize county lines.

Anonymous said...

11:47:

10:27:00 here. Thanks for posting your experience. My comment saying "assuming it is what you say it is" was not intended to imply disbelief. I don't have personal experience in Broward, so I didn't think it appropriate for me to assume anything.

So, what can be DONE about this? It's all well and good (and I don't mean that sarcastically) to complain about this issue on a blog, but what can be DONE?

A(U)SA said...

@ 10:27 - That is exactly what they used to tell us. I specifically remember Ms. Reno at our first meeting as an incoming class telling us that her proudest moment as a prosecutor was exonerating a murder defendant who had been wrongly convicted.

I bet the most common office decoration while I was there was the quote from Justice Sutherland to the effect that a prosecutor is not like everyone else but is "in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer." Scott Fingerhut had it up and it kind of spread from there.

But the attitude has to come from the line ASA's AND from the top. When Miss Reno was the boss, no DC would ever dare suggest you prosecute the innocent, because the person getting a pink slip would be the DC, not the line ASA. Without that support, it is exponentially more difficult to stand up to a supervisor who believes in the theory: "Kill them all. God will know his own."

No prosecutor, regardless of pressure, can ethically maintain an action where he or she believes in the factual innocence of the defendant. That being said, I would hope that you in the defense bar will have the same restraint in bringing a bar complaint that you would wish a presecutor would have in making charging decisions. Not every "the jury will have to decide this one" is the same.

Fake David Peckins said...

No worries here

I'm rolling with the New Jack Crew.

FB said...

you gangsta hip dog )9[}{

CAPTAIN said...

THE CAPTAIN REPORTS:

JUDGE RESIGNS - BUT WILL RETAKE THE BENCH NEXT JANUARY; HUH???

Just when you thought you had heard it all, along comes
Escambia County Judge David Ackerman.

Ackerman temporarily has resigned from the bench with five days notice in an effort to collect a large lump-sum retirement
payment to help bail out his wife's bankrupt business.

So, on Monday, Ackerman, 63, a judge since 1991, sent Gov. Charlie Crist his resignation letter, saying he was leaving on Friday.

But, the Judge will return to the bench in January of 2011. That's because he was re-elected to a six-year term, when no one filed to run against him by the April 30 deadline.

Ackerman's wife, Abigail Bogan Ackerman, and her brother, Chris Bogan, own Bogan Supply Co., a
high-end kitchen and plumbing supply business forced into Chapter 7 involuntary bankruptcy. Bogan Supply owes $1.3 million to creditors.

Ackerman, who makes $134,280 a year as a county judge, said he has no financial interest in his wife's company.

If he had opted for a monthly retirement payment, in
lieu of the lump sum, he would have gotten between $5,735 and $7,808 a month.

Ackerman will return to the bench with no money in his retirement fund. Said Ackerman, "There's no more retirement. There's no more anything. This is a temporary fix," he said. "I love my wife dearly and this is a personal decision."

Cap Out ....

Marty Kohn said...

Damn shame that there are still Reno era DCs and Asa's that have never been weened off the sao's teet that are still implementing these policies.

Anonymous said...

As a former ASA under Janet Reno, I was trained that if there is a "reasonable hypothesis of innocence" then you do not prosecute because it better to let a guilty person go free than to convict an innocent one. A prosecutors job is to seek justice not tunnel vision toward convictions. The power that goes with the office must be wielded with caution!

Anonymous said...

The complaints about the Miami-Dade SAO chiefs (especially Don Horn) are laughable. They ROUTINELY approve below guidelines pleas and even nolle prosses in appropriate cases. They just don't allow case dumping.

BTDT

PS---I once saw an ASA admit, upon questioning, that there really was no good reason to deviate downward from the guidelines and that he just wanted permission to offer a low plea so he could lighten his caseload.

PS2---re Horn firing people; for years those of us who cared all but begged the administration to get rid of the dead wood and slackers. Horn and the others did and are doing so. That's a good thing. Of course, you never hear their side of the story because they're too professional to tell it. You really think you're getting the straight scoop from those who are disciplined? PLEASE.

Anonymous said...

When these Broward prosecutors get bar complaints for prosecuting innocent people, they will stop their behavior. So, every time this happens to your client, file a bar complaint.

Anonymous said...

Rump- Whilst in the pickle barrel I was touching base with some metro cops. the word on the street is that PBA is backing Alvarez over Newman- BAD NEWS BEARS- Newman doesnt have a chance if cops would rather have a PD Judge then him- WOW

Anonymous said...

Congratulations to our new County Court Judge Andrea Ricker Wolfson.

the real fake alschuler said...

I'm baaaaaack and not retired.

The Broward blog and this blog have nothing on me.

In fact, at the 94th installation dinner of the DCBA, I will be unofficially recognized for my unofficial title as chief of gossip of the Eleventh Judical Circuit.

Anonymous said...

Please BTDT, spare us the sanctimonious nonsense.

There have been just as many witnessed events of ASA's going to Chiefs with documented legal reasons for waivers and not always getting them. It would be absurd to say people never get them in Dade, obviously Dade is better than Broward. But Dade is not as perfect as you would paint.

And when I mean not always getting them, I mean not because of the weak nature of the reason. But because of the "politics" of it - particularly if the victim is someone "important" or if the police brass and unions are in the loop (see felony violence against LEO cases) and want a defendant bad, etc. Other times it may have been personality differences. If you were a liked ASA your word was accepted even if your reason was borderline bogus, if you were on the s-list, then no how truthful or legally solid what you said, the reply would be "Try the case."

Anonymous said...

9:07.......never said it was perfect or that politics never play a role in Dade (where did you get that from?). I've been openly critical of the office in the past on a variety of issues.

I just think the claims that the chiefs are unreasonable are a joke (most of the whining comes from lazy ASAs who are frustrated by their inability to fool their supervisors). The truth is that Dade prosecutors give the lowest plea offers in the state (and some of the lowest in the country), hands down.

BTDT

Anonymous said...

I too was a Reno ASA and with her, you could easily dump a case if you thought the guy may not be guilty or if you could not prove it but, first you had to see if you could work with the cops to find more evidence.

I have tried about 40 cases in Broward and they tell me OVER AND OVER that they know the guy looks innocent....like the DUI guy who passes all the tests on tape and refuses to blow but, they would rather have the jury let them go.

To make this worse, I have a client that was arrested twice for DUI and had valid medical reasons for looking impaired and still, we did a jury trial and both times was acquitted. Hell, on the second case, he was not even drinking but, they thought he MAY HAVE BEEN doing drugs but, had no evidence still.... 2 day not guilty.

I too ask them how they ethically do that and they tell me they are following orders.

I then tell them that the Germans used the same defense after WW2.

I have no respect for Satz.

Remember this Monday coming us is for honoring all of those who died to give me the right to say this. (Like my uncle who I am named after who died on Omaha Beach in WW2).

I will sign my name to this: Mike Catalano

Fake Hialeah cop said...

On the above date and time the defendant was observed driving a vehicle with a broken taglight noth on Okeechobee Road and w 29 Street. A traffic stop was initiated and two clear plastic baggies containing a total of 16 grams of kerfuffle were observed in plain view inside the closed center console of the vehicle. Defendant arrested and transported to TGK. Kerfuffle impounded and sent to lab for analysis.