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Monday, September 13, 2010

SISSELMAN v. STATE EX REL ARTHUR

What do sharp and experienced lawyers do when they're not in trial or taking depositions?

They challenge assumptions.

That's what PD David Sisselman is doing. He emailed us an analysis of the (in)famous Arthur case that is the basis for Arthur Hearings throughout the State. State v. Arthur, 390 So.2d 717 (Fla. 1980).

Submitted for our review, and yours, is this language, repeated twice throughout the opinion:
We answer the questions by holding, (1) that when a person accused of a capital offense or
an offense punishable by life imprisonment seeks release on bail, it is within the discretion
of the court to grant or deny bail when the proof of guilt is evident or the presumption great;
and, (2) that before the court can deny bail the state must have carried the burden of
establishing that the proof of guilt is evident or the presumption great. Id. Emphasis added.

...
We hold, therefore, that before release on bail pending trial can ever be denied,
the state must come forward with a showing that the proof of guilt is evident or the
presumption is great. 390 So.2d at 720.
Emphasis added.

At issue before the Court Of Rumpole, and submitted for your consideration,
discussion and review, is Mr. Sisselman's argument that the current system in Dade is unconstitutional
and contravenes the case law of our dear Supreme Court.
Because in Dade County, under the Reign Of Farina, Defendants arrested on Capital or Life Felonies
are held UNTIL Arthur hearings are scheduled. Whereas in the Arthur opinion, the court TWICE
used the word BEFORE as a modifier as to when a Defendant can be held without bond.

What used to occur is that upon arrest, a defendant would engage a defense attorney who would
immediately schedule an Arthur hearing (remember when Fred Nesbitt, the scourge of prosecutors,
would sit as the Arthur hearing Judge, resplendent in his blue robe? Rest In Peace, Judge.)

But during the Reign of Farina, the criminal court Judges conspired, combined, and confederated to
deny a defendant an Arthur hearing until AFTER the State filed charges, some 20-30 days later.

That policy in turn created the ability of nefarious police officers to automatically get a 20-30 day
hold on a defendant by arresting him or her on a life felony, even when the facts didn't support it.
We've all seen it.

At one point do we as criminal defense attorneys seek to enforce the law and not make life easier
for judges and prosecutors who cry "judicial economy" while our clients sit in jail without a bond hearing?
Maybe one of them should sit in jail for 30 days on baseless charges without a hearing so they can see how
unfair it is.

There isn't one of us whose life would not be severely impacted if we were taken from our work and family
and thrown in a jail cell for a month with no recourse.

Rumpole gives Mr. Sisselman a hearty "WELL DONE" for doing what criminal defense attorneys are
supposed to do: challenge authority and assumptions and give no ground in defense of a client.

See You In Court.

BROWARD PDS HAVE A BRADY ROOM FOR BAD
COP FILES.
The Herald reports on the fracas between the SAO and the PDs in Broward here.

12 comments:

Rumpole said...

I re wrote this damn post three times. Sometimes blogger makes you pay for the service being free. sorry for the pagination problems. I can't figure it out.

Anonymous said...

So when DS isn't busy puckering up to the collective judicial behind, he's reading old caselaw and devining the meaning of a 5-letter preposition (BEFORE). Very intellectually impressive. Maybe he should also read the rules of criminal procedure.

Anonymous said...

Nice work, finally some real legal work being done on the Blog.

Anonymous said...

I have been filing motions for "immediate Arthur hearing" for years, citing chapter and verse, nothing new there" anyone wants a copy call me off line
Jason Grey
PS Sisselman is a great guy and good lawyer

Anonymous said...

10:23 is a hater and douchebag. DS is a great guy, a mentor to young lawyers and a fine lawyer.

Anonymous said...

The problem with all this discussion is the knowledge that the only relief you can obtain, if you don't get your "immediate hearing" is a Writ of Habeas Corpus. That also takes time.

By the time you get the 3rd DCA to hear the writ request, the trial court will have had a hearing, either granted or denied bail and mooted out the writ request.

Then you have to follow the procedure of asking the trial judge to rehear your motion for release, have it denied and then file another Habeas Corpus. Don't forget the presumption of correctness and that the DCA will not overrule a fact finding unless it is wholly unsupported.

Anonymous said...

Thanx Jason
DS

Anonymous said...

Arthur also says "the trial court" not some administratively set up other court to lighten the load,..... the trail court.

Anonymous said...

It used to be that we could schedule our Arthur hearings before one judge, who handled all of them for every division. We would normally get the hearing at or near the 21st day. If the state wasn't ready, they would get a one week reset and no more. Moreover, we could easily receive expedited hearings if we provided grounds for the quicker hearing. The grounds often included lack of priors, enrollment in school, or evidence of innocence. We knew what to expect from an Arthur hearing before that judge. Not perfect, and not in strict accordance with Arthur, but better than it is now. When this system changed, and all judges began handling their own Arthur hearings, we lost that uniformity, and we also lost the (relatively) timely hearings. We also have fewer Arthur hearings because many attorneys don't want to expose the facts of the case to certain judges pre-trial. Unfortunately, cases that could be worked out early (under the old system) because of the evidence that came out in an Arthur hearing are left on the docket a lot longer. If I were a judge, I'd want the old system back. Someone else makes the call on the bond question and the case load gets reduced.

Anonymous said...

Zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

Anonymous said...

The 3rd DCA says an information does not need to be filed before an Arthur hearing is conducted.

Anonymous said...

In Cordarius Benjamin v. State, Case No 10-1801, defendant filed writ of habeas corpus on July 14 to require Judge Fernandez to hold an Arthur hearing immediatly before 21 days had run or an information had been filed. Two days later, the Third District ruled:

The emergency petition for writ of habeas corpus is granted only in that an Arthur hearing shall be conducted whether or not an information has been filed. The petition is otherwise denied. SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge, concur.ely