Tuesday, March 22, 2011


If you're not following us on Twitter, you're missing all the action. Why just last Sunday as we lay by the pool at some fancy resort, a blistering exchange between all your favourite bloggers (DOM, So Fla and even the Cocaine Princess) took place.

Twitter: It's really more fun then watching Ohio State and Duke roll through the NCAAs.

Below is a partial re-post of the JAA Broward Blog's post on the Broweird SAO's punitive policy of punishing defendants who have lawyers who are audacious enough to act like lawyers and challenge the State's evidence.

So while you read the goings on North Of the Border, fill us in about our dear Dade SAO- Do they withdraw all plea offers when the defense files a motion or seeks to take a depo?
Is there any rational defense to a prosecutor punishing a defendant for hiring an attorney who does their job?

(And before you go nuts, of course limited exceptions are totally understandable. A defendant who insists on having his lawyer depose the child victim of a sexual battery should expect that a reasonable plea offer will be withdrawn if the child is forced to speak about the incident. But there is a world of difference between the victim of a sexual assault and a narcotics detective, right?)

Lawyers fighting drug trafficking cases handled by the Broward SAO's Drug Trafficking Unit (DTU) have been operating under false impressions. It turns out you can file Motions regarding Suppression, Entrapment, Substantial Assistance, and other issues without fear of reprisal by having all below minimum mandatory offers revoked.

By way of background, DTU handles drug cases (mostly involving pills), carrying fifteen and twenty-five year min/mans. They tell you that if you dispute the State's evidence via Motions that don't get granted, you are plain and simply going to trial. Addicts who are in simple possession of maybe twenty-five pain pills are then looking at fifteen years, or twenty-five years for a few additional pills. The jury by law does not get to hear what the potential penalties are, and it is not necessary for the State to prove the addict sold or intended to sell the drugs.

The net effect of the way DTU does business results in predictable outcomes. Defendants are scared out of their minds, since the SAO runs the show even more than usual. Not being satisfied with the legislature taking away most of the judge's discretion, they remove any further possibility of a neutral arbiter's review by banning Motions for judges to consider. Defendants who can't prove their innocence or overcome illegal police activity on the facts alone are often forced to accept convictions along with DTU's standard three year prison sentence on fifteen year min/man cases, or seven years on twenty-five year min/mans. They are branded drug traffickers for the rest of their lives, or, if they're lucky, given convicted attempted drug trafficker status with shorter prison or jail time followed by gobs of probation. They are forced to give up all their rights because of what can only be deemed an Un-American policy that is in direct contradiction of the intent of the framers of the Florida and United States' Constitutions, out of fear of spending fifteen or twenty-five precious years in the slammer.

Of course, as stated above, it turns out there isn't a policy at all. All the lawyers who have been told this by a DTU prosecutor must have misunderstood, including the judges who hear it when it's stated on the record. Yes, even those lawyers DTU Chief
John Gallagher screamed at for going over his head to Chuck Morton orSatz because they didn't like the rules are wrong too.

Can't believe your eyes? Here's part of an email sent to SAO Media Man
Ron Ishoy earlier today:

"(O)n Mr. Satz's policy regarding the Drug Trafficking Unit.

As everyone knows, Mr. Gallagher and his team withdraw all offers if an attorney files a Motion To Suppress, Motions regarding Entrapment defenses, or any other type of Motions questioning the State's case. If Motions are filed, a Defendant has to go to trial facing the mandatory minimum penalty in nearly every case. If no Motions are filed DTU will entertain breakdown offers typically involving reduced prison sanctions.

The question ... is simple: what is Mr. Satz's rationale for the policy?"

The answer came at 4:54 pm:

"The State Attorney's Office has no such blanket policy. Each case is based on its own evidence and unique circumstances."

Again, who knew? Every attorney, judge and Defendant must have misunderstood. You can file Motions in DTU cases without fear of reprisal after all.

Here's what Kevin Kulik had to say after he learned of Ishoy's email, echoing the experience of nearly every single attorney in Broward County for at least a decade:

"If it's true they must have decided that today in a meeting with Mr. Satz personally. I've had ASA's explain that policy to me for years. Every DTU prosecutor has explained that policy to me because the policy was you can't file a Motion."

Rumpole says: It sucks getting caught in a lie Mr. Satz, doesn't it?


Anonymous said...

Sounds exactly like vindictive sentencing. Impossing a trial or motion tax if defendants exercises constitutional or procedurl rights the plea penalty increases.

Anonymous said...

540 here.

First of all, I have been a lawyer for many years and have written at least 5 letters to JNC and to governors office re candidates that have applied to be judges.

Second of all, the JNC's are not truly independent and everyone knows this to be true. how can you explain how some people simply sail through on the first try while others equally or more qualified take years. She may be a great Judge, havent had the pleasure of being in front of her yet, but are you really telling me that the fact that Nushin Sayfies husband raised tens of millions for GOP candiadates had nothingo to do with her making it out of Committee on the very first try? are you really saying that the fact that bill alfields frequent prosecutions of MDPD officers and the fact that John RIvera hates him has nothing to do with how hard a time he has had?

really? do you truly believe this?
Captain I often agree with what you write on this blog but you seem like you are a paid hack on this one.

Anonymous said...

99% of the dope dealers are on tape holding, kissing, loving and selling the dope and the money and in Spanish.

So, who are they not the cases we flip?

I have dealth with Broward SAO dope prosecutors and they were fair.

Anonymous said...

I had a case that I fought hard a few years back (Hollywood undercover case with CI) I wasnt punished at all, my client got 90 days on day of trial at backup.

I would have gone all the way, but he was not willing to chance it - good call.

And i had a case in career criminal division where i couldnt get an offer from SAO without doing depositions. I still dont understand that.

FACDL list serve leaker said...

5:38 p.m. is exactly, one hundred percent correct. And you know it in your hearts.

JNC's in general -- and the 11th Circuit JNC in particular -- offer the appearance of independence, without that pesky independence. (And yes, I've sent letters and made calls to the JNC, pro and con.)

But that's alright, because the other option is having Bob Levy and/or Armando Gutierrez and the absentee ballot machines select the judges.

Swell, huh?

Anonymous said...

The broward drug prosecutors are anything but fair. They are lazy and vindictive.

CAPTAIN said...

SCOTUS .....

Workers who complain to their employers about wage violations are protected from retaliation whether the complaints are oral or written, the Supreme Court ruled on Tuesday in a 6-to-2 decision.

In a dissent, Justice Antonin Scalia said he would have ruled for the company on the ground that the majority would not consider.

“The plain meaning of the critical phrase and the context,” Justice Scalia wrote for himself and Justice Clarence Thomas, “make clear that the retaliation provision contemplates an official grievance filed with a court or an agency, not oral complaints — or even formal, written complaints — from an employee to an employer.”

Justice Scalia said the argument had been properly preserved by the defendant in the case, Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834. In any event, he added, the court was free to address the question and should have.

Justice Scalia also objected to the majority’s consideration of “modern state and federal statutes” in determining the meaning to the word “filed” in the 1938 law.

“While the jurisprudence of this court has sometimes sanctioned a ‘living Constitution,’ ” Justice Scalia wrote, “it has never approved a living United States Code.”

Cap Out ....

CAPTAIN said...

The Captain Reports:

Deadbeat Dads - are they entitled to court appointed counsel ...what say you fellow bloggers???

Imagine if the SCOTUS says YES - that deadbeat dads should have counsel. Gov. Scott will have a heart attack as he will have to find money to fund the PD and the Regional Counsel. NOT. Carlos and Joe George wil be even further strapped for cash and attorneys to perform this extra work .....

from the DBR:

"A South Carolina father who was repeatedly jailed after insisting he couldn't make child-support payments of about $50 a week is asking the U.S. Supreme Court to end five states' practice of locking up delinquent parents without providing them with a lawyer.

In a case that will be argued before the high court today, Michael Turner contends poor people who are facing time behind bars for missing payments have a constitutional right to an attorney at taxpayer expense. Florida, Maine, New Hampshire and Ohio are the other states where deadbeat parents are not automatically given a lawyer in such cases.


In its ruling against Tucker, the South Carolina Supreme Court said a delinquent dad holds "the keys to his cell because he may end the imprisonment and purge himself of the sentence at any time" by paying at least some of what is owed.

The court also noted failing to pay child support is an act of civil contempt, not a criminal charge for which the state would have to provide representation. Throwing such people in jail is not meant to punish them but to get them to comply.


Thirteen states have filed a brief asking the high court to side with South Carolina. They argue the Sixth Amendment right to counsel in the Constitution applies only to criminal cases, and that a ruling in Turner's favor could quickly expand to require lawyers for poor people in a number of other civil proceedings, such as child custody hearings — a costly prospect at a time of big budget deficits.


Cap Out ....

Anonymous said...

Rick Scott signed an executive order requiring quarterly random drug testing of all executive branch employees. I am a drug free employee who will be subject to the testing. How do I object to it????

Anonymous said...

If the Supreme court agteed to hear the case it is because they intend to overturn it. Forget about that dicksucker Scott, the way people are dealt with in child support court is an outrage.

Anonymous said...

Not all "deadbeat dads" are necessarily what they are labeled by the State. And if the State represents the mother's/"children" interests even when mothers have been known to lie about the paternity of the child, I say why not since what is good for the goose is good for the gander... Either that or stop representing so many baby momma's...

Anonymous said...

Governor Scott doesn't want to pay state workers and now he suspects that they are on drugs! http://www.miamiherald.com/2011/03/23/2130397/gov-rick-scott-orders-random-drug.html

Anonymous said...


Looks like a ton of state jobs will be opening up!

Anonymous said...

Good thing the pit PDs have 59 days to clean up!

Anonymous said...

1:58:00 PM - clearly you need to quit your job. "But what about my civil liberties!?!?" The ACLU will take up your case but drop if you got nothing to hide. I suspect you do.

Anonymous said...


Read the Miami Herald article today where former-City of Miami Attorney Jorge Fernandez complains that his criminal defense attorney gave him bad advice. While that does not seem to be the case from the little I know, I was curious as to who his attorney was. Do you know?

Anonymous said...

How long does it take marijuana to leave your system?

Anonymous said...

Sean Casey wants you to know that Chief Justice Hirsch has not yet been indicted for obstruction of justice.

CAPTAIN said...

to 9:49 PM

The Captain Reports:

Barry Wax was his attorney and Mr Wax did a fine job with the case. He presented his client with the facts and the law and the client made the choice. Mr. Wax has never been shy about picking six (or 12); but now Mr. Fernandez complains.

Shame on Fernandez.

Cap Out .....

Anonymous said...

How long does it take to clear your system of PCP?

Kissimmee Kid said...

Dear Wednesday, March 23, 2011 5:25:00 PM;

The outrage is the men who spray their sperm and then do not support their children. The outrage is the women who whore around and half-raise their whelps while they suck on the government tit.

Now we are proposing that the scum who won’t support their children should get a free lawyer! And the children still go without support?

The parents of children who do not support them should not be walking around free.

Anonymous said...

I'm patiently waiting for a photo post defining "Ass Clown". Stick figure will do. Enlighten us Rumpole! Don't make me look to Mr. Markus for instruction.

P. Nis said...

Why didn't the bar discipline Mr Fernandez?

Anonymous said...

To 8:54 pm - I'd be more worried about the hypocritical pit ASAs.

Anonymous said...

The 3/15 entry on Gov. Scott hits the mark at the miamifauxlawyers blog.

Anonymous said...

Drug-testing means I have to have a list of the sleeping and anti-anxiety medication I take to hand over? What about HPPA?

And, of course, I take the anti-anxiety medication because in a few months I'm going to be replaced by a tape-recorder.

I obviously need a backup plan. Everybody needs a backup plan because our jobs are not as secure anymore.

English Lesson:

Then and than are not interchangeable. Than is a conjunction joining two clauses.

And it's not "flush" it out. It's flesh it out. To separate skin from flesh.