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

Tuesday, December 21, 2010

RARE EVENTS

Today/Tonight is the winter solstice (when the sun is at the lowest point in the northern sky for the year) and a lunar eclipse!

"So what's so special about that?" you say? Well, it happens about once every two thousand years. According to the Washington Post, the last time both events occurred on the same day was in 1638 or perhaps 1544 (either way it was a long time ago, even before there were lots of Starbucks. )

OUR LAWLESS 11th CIRCUIT COURT OF APPEALS:
Speaking of rare events, Judge Scalia is upset and he's dissenting from a denial of certiorari in Allen v. Lawhorn. First, let us say that once again we are forced to confront activist judges who want to legislate from the bench and thank goodness there were five level headed judges who were wise and "conservative" enough to let the lower court ruling stand.

Lawhorn is an inmate who was sentenced to death by the great state of Alabama (motto: "commit a crime here and die") . The 11th Circuit overturned the sentence finding that Lawhorn's trial counsel for the sentencing phase was ineffective.

The mistake at issue is that Lawhorn's counsel waived closing argument in the sentencing phase of the trial under the mistaken belief that waiving would have prevented the prosecution from giving a closing argument. Lawhorn's counsel objected when the prosecution went to give a closing argument but the objection was overruled. The 11th Circuit found that the error was not a reasonable strategic decision but an erroneous belief. The US Supreme Court refused to grant cert, so the decision stands, and DOM's favourite judge and "best-est" friends to defendants everywhere just can't sleep at night knowing another one has slipped through his fingers.

Scalia's beef (a legal term meaning "what really bothers someone when they lose...")?

That the AEDPA (anti terrorism and effective death penalty act) requires federal courts to give state courts great deference in interpreting the law, and that great deference combined with the fact that the supreme court has never held that a failure to give a closing argument is ineffective assistance of counsel under Strickland v. Washington, is such that no reasonable federal court anywhere could ever grant any defendant sentenced to death any relief after his claim has been denied by a state court.

Put another way, Scalia is saying : "We all know Congress meant to say that a defendant's habeas claims should never be granted, especially in death penalty cases, and this case is an intolerable example of a defendant winning. No defendants should ever win a habeas claim. Ever. That's why they call it the 'great writ' "

In raging against his brethren Scalia takes time out to diminish the impact of closing arguments ("not evidence" and mere fiddle-faddle) while conveniently overlooking that even without a closing argument, one juror had recommended life and in Alabama at that time three jurors were enough to recommend a life sentence.

And what about the very clear mistake Lawhorn's counsel made in waiving a closing argument by mistake? To Scalia it's a mistake that can be reasoned away. For the rest of the educated universe, most of us are not comfortable with the government killing a citizen based on a proceeding in which a fundamental process was fumbled away in error.

Scalia just can't live with a court system not geared to kill its litigants as this passage makes abundantly clear:

It has been over 21 years since Lawhorn was sentenced to death. Alabama should be not barred from carrying out its judgment based on a federal court’s lawless speculation. I would not dissent from denial of certiorari if what happened here were an isolated judicial error. It is not. With distressing frequency, especially in capital cases such as this, federal judges refuse to be governed by Congress’s command that state criminal judgments must not be revised by federal courts unless they are “contrary to, or involv[e] an unreasonable application of, clearly estab- lished Federal law, as determined by the Supreme Court of the United States,” 28 U. S. C. §2254(d)(1) (emphasis added). We invite continued lawlessness when we permit a patently improper interference with state justice such as that which occurred in this case to stand. We should grant Alabama’s petition for certiorari and summarily reverse the Eleventh Circuit’s judgment.


So there you have it: What does Justice Scalia think of our 11th Circuit? "Lawless speculators." If we called them that you can bet the Marshals would be hunting down our ISP address so we could be hauled before the Court in irons to explain ourself. But if Scalia calls them that, well......




24 comments:

Anonymous said...

Good timing on the news Rumpole. I watched the eclipse -- LAST NIGHT.

Try again in a few hundred years.

CAPTAIN said...

The Captain Reports:

Rump, I stayed up late last night and watched as the very full moon, about 1:40 am, began to go dark. By 2:15 am, it was half covered in darkness. I did not make it to the point where it was supposed to turn different shades of red.

Also, as a side note, have you seen the dump reports out in the Sierra Nevadas where they have had 10 feet of snow fall over the past weekend. If you can stand the 20 degree temps, the ski conditions are off the charts.

Cap Out ....

Anonymous said...

I think the proposed amendment to require ten years experience is a great idea.

But for those who want to bust on Gonzalez Paulsen, consider that at least she had a practice of her own and was practicing law through the election. The others?

Everyone’s sweetheart Samantha Ruiz Cohen? She hasn’t practiced for eight years, instead she was teaching at FIU. For her to say she “practiced products liability law” was close to a falsehood because she joined the firm during the campaign and did nothing there ever. So she had 10 years of experience, just three more than MGP, 8 years ago and no clue about private practice. People would say, oh she is a law professor. Wrong. Teaching FIU undergrad con law is not the same thing. She seems smart at least and I never heard her say anything nasty in her campaign, as if she had to about Adrian. She tried not to get associated with the rest of the Levy people but she did hire him I think. I’m not against her, I voted for her. But let’s not act like MGP has no experience and SRC has tons. She passed the bar 18 years ago or whatever, but so what, that’s not the point.

Gordo? She is going to be horrible and she is going to be a judge forever. Zero private practice experience, less than 10 years as a lawyer, so maybe two years more experience than MGP. She started the campaign on Spanish radio promising to “clean up the gangs.” All she talked about at Spanish speaking events was being tough on crime. She ran a vicious campaign. I was at several events, very interesting what she’d say about her opponent in private or when he was not at the same event. She had Levy’s people saying even worse. Of course I smiled and agreed with her, what was I going to say? She completely owes a Miami assistant police chief named Vega who helped run her campaign and escorted her to most events so that I am seriously thinking I will have to move to recuse her the first time I have a client in front of her where MPD made the case. I keep hoping someone else will do it first. Are you reading this Carlos?

cont . . .

Anonymous said...

. . . cont

Rodriguez Chomat? Well he sure has the legal experience and ran a private practice. But he is going to hit mandatory retirement before his term runs out, although they get to finish the term. And no one knows anything about him because he outmaneuvered de la O to take away the seat from Johnson. Only thing we know is he got into a fight in legislature.

Hirsch? He will probably be good as he has been in private practice and everyone knows how smart he is. I can see him ruling against the state if it is the right thing. But who knows. He sort of bought the thing in the sense that he put in a zillion bucks and bought every consultant in town. Look at the list, he had like everyone even the ones that work against each.

Oh and before you say all judges should be appointed, look at the list of people on the JNC then start checking their campaign contributions. And who is Scott going to appoint now? Face it, the whole system is screwed up. You think MGP won because Seff was horrible? You think Ruiz won because Adrian was terrible? You think Gordo won because voters ever heard of either her or the other one and thought she was better than the civil court guy she ran against? BS! Wake UP or more truthfully be HONEST. No one who voted knew Seff or Adrian or Kunts and they do not read this blog. They just saw GONZALEZ and RUIZ and GORDO y ya! That’s how it is in Miami. OK with me, I’m Cuban and about time and at least opposite of Broward. Anywhere else you are F-ed with those names. But I can admit it at least that it is the name and that's all. And please don’t point to Newman as some kind of exception. He was a DOLPHIN and he spent nearly $250K and he managed just barely to squeeze by Alvarez. He showed pictures of playing with the Dolphins. OK, good reason to be judge.

All you can do is go in try to fight for your client and then thank god the Third DCA and the Supreme Court are better.

Please Carlos move to recuse Gordo before I have to. I will be bringing my toothbrush to court that day for sure.

Anonymous said...

Carlos who?

hungry said...

whose the big macha at Devitos at the Beach on Ocean drive? The guy who can get me in?

Fake Alschuler said...

Rump- I don't know about the rest but I still haven't even had an offer. We're going into the last of the year and no one associated with the blog has a new contract. Fake Matters&Adelstein bolted earlier in the year for the Fort Pearce Blog( they're a hit) and West Palm Beach Blog (not so much); Fake Blecher, RFB, Fake Risivy, Fake Jay White, Fake Ted Mastos, Fake Alex Michaels, everyone, is waiting and I can tell you many of us (ok- not Fake Blecher) have other offers.

Either your blog GM steps up and starts making offers or this place will be a quiet as Fake Blecher's living room on a Saturday night.

Anonymous said...

I think two time winner Warran Schwartz is a lock for MVD (most valuable defender) and don't look twice but was that the wonkish, bookish, Andy Kotztin- he of the famed DUI motions-at Club Louis macking out with Kim Kardashian??

Anonymous said...

If the Supreme Court were likened to a body, Scalia would be the asshole.

Anonymous said...

It is not a justice system. It is a mechanized system of oppression and control.

Marty Kohn said...

8:19, ok and? How many times do you want to beat this dead horse?

Anonymous said...

Milton Hirsch intelligence and legal know how is a turn on to most women. I am attracked to a distinguished intelligent man who is confident and knowledgable, I think you are too. I think Rump is a girl!

Anonymous said...

I think Gordo won because she looked better than her opponent. She is pretty and looks likeable. That goes a long way in this superficial town of Miami. In the end most will regret she won, because almost no one in Miami goes through life without a loved one hitting the legal system. I hope she learns from the life of former prosecutor turned awesome judge, Robert Pinero. Leave the prosecutors office completely behind you and defend the constiution of this great country. Do not be afraid to do the right thing, take each person as an individual and remember the accused have families that vote too.

Anonymous said...

Warren stop write about yourself.

Anonymous said...

weisman can get you in anywhere

Not On Calendar said...

I called a JA in Broward to set a case for next week and the strangest thing happened: The JA said "Negative Ghost Rider, the pattern is full" and then laughed a bit and hung up on me.

Now I know that's a line from a movie but I can't place it. Any help?

no can do said...

Nah- KW can't pull a seat in the big hot places like Devitos, Joes, or the Primes. if you want a seat at Fridays or Fresh on Fifth or that all you can eat steak place maybe. But save your breath otherwise.

Anonymous said...

Weisman can't pull shit on the beach.....

And it was Top Gun

Anonymous said...

Top Gun

Anonymous said...

top gun

Anonymous said...

"But for those who want to bust on Gonzalez Paulsen, consider that at least she had a practice of her own and was practicing law through the election."

I feel so much better. That will give her the perspective to determine how much time an offender deserves, the knowledge to decide complex legal issues, and ability to make quick decisions on objections at trial. NOT. You must be kidding.

I continue to be amused by the number of people who defend MGP who refuse to tell us about her courtrooom experiences including how many bench and jury trials (if any) she's had. THAT is quite telling.

I think it's remarkably arrogant for someone with so little experience as an attorney and so little (if any) experience in trial to run for judge.

BTDT

Anonymous said...

I think all of you who bitch and moan about the people with no experience who run for judge need to step up to the plate and run yourselves. It might be arrogant to do it with little or no experience, but it doesn't seem like many people experienced people are willing to do it.
All you masters of trial and been theres and superheroes who boast of all your trial experience, put your money where your mouth is and run. Or convince your qualified brethren (or sistren) to do it. I'm sure there's qualified ppl out there who would win if they ran.

Kissimmee Kid said...

"Put your money where your mouth is and run."

Why. What if I won? I'd have to give up an interesting occupation for a mind-numbing, dead-end, job. What could be more tedious than a modern circuit court judge?

Face it, judges are losers.

Anonymous said...

Okay 10:59 - Do you really think it is about experience? It should be. But it is about being female and having an Hispanic last or hyphenated name. And that is the shame of it. Good experienced lawyers can't win because the public does not give a damn enough to educate themselves on who the better candidate is. It is #1ethnicity; #2 gender; and #3 race.

All this debate is useless. Most of you would not know a good judge if you saw one. You just want someone who is "nice" not someone who is smart. They are not mutually exclusive, but I will take smart over nice every day.