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Thursday, August 05, 2010

3RD DCA ROUNDUP-WOOPS HE DID IT AGAIN EDITION.

You know him, you love him (literary license) you can't live without reading ANOTHER one of his cases reversed on appeal.

Roosevelt v State: This was a Civil Commitment trial wherein the prosecution sought to have the defendant committed for an indeterminate length of time as a sexual predator. Judge Peter Adrien presiding.

From the decision:

For the reasons stated below, the judgment is reversed and the cause remanded for a new trial.

First, the State was allowed to cross-examine the expert concerning her testimony in a child custody case in the mid-1990’s in the State of Washington where the judge found the expert’s testimony not credible. The expert had been appointed as a guardian ad litem in a contested custody case involving four children. She opined that the children should go to the mother. The judge found the expert’s testimony not credible because the court determined that the expert had ignored testimony that the mother had physically abused the children.


The State contended that this was permissible because a party “may attack the credibility of a witness by . . . (2) Showing that the witness is biased.” § 90.608(2), Fla. Stat. (2008). We are unable to see any plausible argument that service as a court appointed guardian ad litem for four children approximately thirteen years previously demonstrates bias on the part of the expert in a Jimmy Ryce Act proceeding tried in 2008.


Second, the State was allowed to question the expert concerning $18,000 she paid in back payroll taxes to the IRS in the late 1980’s in relation to a for-profit hospital she and a business partner operated. There was a lawsuit between the partners. The trial court found her testimony not credible regarding a portion of the payroll taxes that had not been paid. This IRS-related cross-examination consumed three pages of transcript. The State argued that this cross-examination was a permissible inquiry into bias. We disagree. Again, this evidence concerned a purely collateral matter and admitting the evidence was error.


For the reasons stated, the judgment is reversed and the cause remanded for a new trial.


Rumpole opines: Judges need to read the evidence code and understand it and keep current on case law about rules of evidence. Judges are entrusted to be the gatekeepers of what a jury sees and bases their decision on.



12 comments:

Anonymous said...

he is not smart

Anonymous said...

Still, a pretty disturbing picture of this witness's credibility.....

Anonymous said...

Are all those excusing Newman's behavior doing so only because he is one of your "landsmen"?

If you are serious however and looking at this objectively I now understand why most of you Justice building frequent fliers are widely considered bottom feeders by the rest of the Bar and are regularly disrespected by the 3rd DCA.Boy the standards of the majority commentators for trial judges is pretty low ....we would not tolerate this in civil....It appears your reputations are well earned

likely news events said...

The Obama administration announced today the appointment of Miami Circuit Judge Peter Adrien to the 11th Circuit Court of Appeals. "This guy's on a rocket. He is on the short list for the next opening on the supreme court."

In other news the Pentagon announced the finding of a large cache of WMDs in Iraq. "Bush was right all along. we owe him a big apology" said one senior advisor to the President.

In local news at home, Wall Street apologized for what it called a decade of greed. All the major firms have announced pay cuts with the additional profits to be turned over to school districts across the country to build new hi-tech public schools.

Speaker Nancy Pelosi announced the formation of a "coalition government" with Minority Leader John Bonier. "At last republicans and democrats have buried the hatchet and have pledged to put aside partisan politics for the good of the nation."

In sports the Cubs wrapped up their second consecutive world series win over the Yankess; The Detroit Lions won on Monday night football to bring them to 8-0 in the first half of the season.

Anonymous said...

12:16

you sir are a fool

Anonymous said...

The Newman transcript begins at 12:06 pm. I think the transcript for the morning would be quite enlightening. If i'm not mistaken, Newman made a big deal that Dorta wasn't there and that Robert was willing to proceed in absentia. I think Newman threatened to issue a BW which is totally unecessary on a bench trial case with this charge and involving any member of the Bar.

Again, I THINK I heard that was what happened in the morning. If so Newman was WAY off base.

Anonymous said...

Big Props to Marti Rothenberg from the PD's Office for winning the appeal on Roosevelt. This was the first time I lost a trial and immediately knew it was coming back
on appeal. After reading Marti's initial brief I was even more certain that a reversal was coming. It was like the State and the Judge didn't even look at the evidence code or the caselaw.

CD

Anonymous said...

12:16.......lol. Civil lawyers try a case every couple of years. We don't give a crap what you think of our judges and how we practice law. The average civil lawyer would be slaughtered trying cases in criminal court.

BTDT

Anonymous said...

Rumpole
Too many in MJB dont UNDERSTAND Evidence. They jump on What They Think is the Ev code and like nice easy but wrong calls; like on leading questions . If they read the law or even talked to Mark King Leban they would understand how few questions are, in fact, objectionable as leading.
Read FLW weekly and then understand the law. Harmless error was creaated to cover Judges and give the State the win even if both got it wrong, an broke the rules.
DS

DUI GUY said...

Ever see Bloom before a DUI trial? She swears your client in, tells him that if he loses she MUST impose sentence immediately, no delay and he will IMMEdIATELY begin to serve his sentence, no appeals bond. If that sentence happens to be jail he will be IMMEDIATELY taken away. She rests this legal analysis on the statute that says you must be adjudicated upon a plea or finding of guilt. Her trial tax speech is a 100X more frightening than Newman's especially since everyone knows ED is kind and fair and has a reputation for NOT sending clients to jail on a first DUI if he sees they are amenable to rehabilitation. I'll take a trial with Newman over Bloom any day of the week.

Anonymous said...

Newman is just a good guy. Cuban mafia gonna get smoked in this race.

Anonymous said...

For anyone who practices in all three arenas, Criminal, Family, and General Jurisdiction, you will probably note the following with respect to communications within the Bar:
1. In Criminal, if a lawyer says sonething, you can usually bank on it without writing it down.
2. In General Jurisdiction, you better write a letter confirming when you get back from court.
3. In Family, you need to have the judge enter an order before you leave the courtroom, and the opponent will still file a motion saying it wasn't so.

As to the judges, I will take a blind pick at REGB any day of the week, circuit or county. That is not to say that there are not good judges everywhere, but the concentration of good judges is higher at REGB in my view.
And, as someoen who rads teh slips every week, I do not discern any level of disregard for either the lawyers or judges in criminal.