Wednesday, August 17, 2011


Put a fork in it, it's done.

What is done? The U Of M football program and Florida's Drug Law.

As we suspected, Judge Milton Hirsch, in a thoughtful, erudite, and non-struthian opinion, has granted a motion to dismiss possession cases before him, holding Florida's Drug law (893.13 for those of you keeping score at home) Unconstitutional for not requiring the State to prove mens rea and quote Shakespeare in every successful prosecution.

Hirsch orderopen

(in some versions of the blog, depending upon your browser, the order may not be fully seen. Just click the first button on the left- the square with the arrow and it will take you to fullscreen. We regret the inconvenience.)

There's so much in this order, and we have been in court all day and are tired, and quite frankly Milt is best read on a full stomach with plenty of rest and sufficient alcohol at hand (of which we have neither- rest nor drink) , so for the moment, we'll just leave it to you to read the order. Suffice it to say, Judge Hirsch found fit to write this on the first of 24 pages: "As Mark Twain is alleged to have said, 'If I had more time I could have written you a shorter letter.' "

As many will shortly say after clicking on the Scribd link: "Oy."

The U of M:
Check out our twitter feed to the left. We tweeted the link to the Yahoo Sports article that one day will be seen as the first of many nails in the UM Football coffin.
A fantastic piece of investigative/sports journalism, the article sinks the program, not to mention the President of the U, who is pictured proudly holding a $50,000.00 check standing next to the Nevin Shapiro, a UM sanctioned "Booster" whose ponzi scheme funded the check. Shapiro also used his ponzi scheme money to pay for ocean front mansions, a 1.6 million dollar yacht (on which he entertained players and prostitutes) parties at the best night clubs, and loads of prostitutes and cash payments to dozens and dozens and dozens of UM players over the last decade. The trips with the UM basketball coach to Tootsies can't help very much either.

For ten years the booster who proudly bore the nickname "Little Luke" took up the mantle where Uncle Luther Campbell left off, paying for liquor, women, parties, and cash bounties on opposing players like Tim Tebow (Ok- there are a few redeeming things from this scandal.).

We don't see how the U escapes this intact.

See You In Court. Read Uncle Milt's order. It's worth the time.


Anonymous said...

I watched the hearing. Judge had no legal authority to make this ruling. He had his mind made up, and probably this order written, before arguments. It's going to get reversed by the 3rd, upheld at the Florida Supreme Court. Milt simply wants a case to have something he wrote brought to the US Supreme Court. Sad he had to disobey the law to do so.

Anonymous said...

Good lord get over yourself Milt. You clearly ignored all arguments made - by the Defense and the SAO. You didn't bang this order out in one night. What a sham.

Anonymous said...

just read the order, the entire order, milt is really a class above most circuit judges.

Anonymous said...

Good for Judge H!

Mr. Justice Milton HIrsch said...


By my latest calculation I am now 12,345th in line to the presidency (please see my attached 233 page memo as to why I am ahead of Judge Samantha Ruiz Cohen was was ostensibly, but not actually, elected with me during the same time period).

Being so close to being called upon to assume what the declaration of independence so artfully calls the "just powers of the consent of the governed", and with prayer that no tragedy necessitates my ascendancy to the presidency, I am nonetheless both constrained and obligated to arrange with your august agency the necessary protection for an individual such as myself. Please respond with a memo and PROPOSED plan of protection to my faithful secretary Ms. Moneypenny. Be forewarned that your failure to follow appropriate procedures will result in Moneypenny rejecting your submission sua sponte, and returning it to you unread.
I am sure we can both get on the same page and get this done.

Yours etc, and your humble sevt,

The Right and Honourable Mr. Justice Milton Hirsch.

Anonymous said...

Kudos to Judge Milt. Love him or hate him but his writing is never dull (unless your first name is Nancy).

Anonymous said...

Judge Hirsch's thorough and methodical destimbalation of the state's arguments with logical reasoning, binding precedent and words such as "diacritical", "irrefragable", "internecine", "sedulously", "obloquy" and "shibboleth" renders the opinion as nothing less than an empingated example of judicial writing.

Anonymous said...

Sun-Sentinel reports red light cameras get green light by Broward Judge

Anonymous said...

Um, I'm confused, why a dismissal and not just a new trial with the proper jury instruction on mens rea? How was the judge able to determine that the state could not prove knowledge in all of these cases?

Rumpole said...

The Judiciary (even Milt Hirsch) has no authority to change the requirements of proof of a crime. A judge must follow the law as written or find the law defective. Therefore Hirsch could not lawfully do as you have asked. Only the Florida Legislature can add the requirement of knowledge.

Anonymous said...

The 3d reverses him. And the supreme court affirms. This guy's ego is out of control. There is one word he should learn the meaning of: humility. I find it offensive when judges go out of their way to make themselves the center of attention.

Anonymous said...

And the Orlando judge will get reversed by the 11th. The Supreme Court will leave it all alone.

Anonymous said...

"empingated" is a great word!! I like it.

Fake Peter Adrien said...

I object to the language used on this blog rising above the 6th grade level. I don't come here to be made to look ridiculous.

"and a man in my position can't afford to be made to look ridiculous."

Anonymous said...


Anonymous said...

Let's see all you sorry ass defense attorneys talk crap about Hirsch now. Hilarious.

Anonymous said...

A few years ago, my friend--who played major college football--spoke to Donna Shalala and, with the best of intentions, offered to become involved with the UM football program on a volunteer basis, but President Shalala demurred, claiming that NCAA rules prohibited third parties from having any contact with her football team. Of course, my friend had never given any money (let alone $150K) to the "U" so I guess he didn't fall under this apparent U of M loophole (the Nevin Shapiro tainted money exception?) to the NCAA rules.

Like the politician that she has always been, Shalala is all about the money, and, in this case, it is going to lead to her downfall. On another occasion, I managed to attend a major political reception at her house, given mainly on the behalf of major donors to the U (Alfie Fanjul, Jorge Perez, etc.), and, not knowing who I was and, therefore, knowing that I had not made any donations to the U, she treated me like something that she had just wiped off her shoe. This is a major scandal not only for the football team but for the U of M administration. It is like a lawyer accepting a tainted fee in a criminal case, and the government seeking forfeiture of the fee (or, in Ben Kuehne's case, a criminal indictment). In Shalala's case, it could not happen to a more deserving person.

Anonymous said...

Too long -- I am not reading it - can some sum it up in a line or two?

Anonymous said...

Where are all the idiots who assailed the issues at Ohio State now? Selling what you own in return for a tatoo vs. being paid cash, jewelry and cars for playing football. Isn't that the NFL. Oh yeah, that is the "U"niversity of Miami and they are so much better than everyone else. At least they could have bought the players they needed to compete for a national championship. NCAA death penalty time.

Anonymous said...

I can understand how cops and prosecutors will be upset with Milt Hirsch's order (and, hopefully, they are the ones posting the negative comments), but I don't see how any member of the criminal defense bar would want to criticize the order or Hirsch for writing it. This is the best order to come out of a state trial court in the 30 years that I have been practicing law down here. Those of you who think that Hirsch is going to be automatically reversed on appeal obviously haven't taken the time to read the order. You can tell that he put a lot of time and thought into writing the order and addressed all of the major points. What I like about this is that, if the Third District wants to reverse Hirsch, it is going to have to actually write an opinion doing so (and, as Hirsch points out, to date, no Florida appellate court has actually addressed the constitutional merits of the amended 893.13), and any such opinion is going to pale next to Hirsch's legal analysis in a point-to-point comparison. The order already reads like an appellate opinion and is a lot more persuasive than most of the stuff that has recently come out of the Third DCA. I have never been Hirsch's biggest fan, but I have to give him maximum credit for having the guts to do the right thing and try to put a stop to the Florida legislature's attempts to write the burden of proof out of the Florida criminal statutes. This is a truly impressive legal work.

Sentinel said...

How could he let Carlos Santana off!

Anonymous said...

Coming Soon:

Boats & Hoes

The UM Story...

Anonymous said...

I like the fact that we have Judges who are willing to put a debate before the higher court's so that we can get a just outcome. It does not matter if you favor the prosecutor or the defense as you should favor a Judge willing to fight for his belief and not just go with whichever way the wind is blowing the day.

We will remember a Judge like that in Orlando and Milt who took a stand before we will ever remember a Judge like Cueto who just goes along with the puppet strings of the law before him.

As someone wrote earlier the Law in Alabama was to prevent Blacks from entering all White schools, had every Judge just followed the law we would have never had a just result.

FACDL list serve leaker said...

Hirsch's order is thoughtful, complete -- and right.

READ the damn thing. Or at last read Shelton. By sucking mens rea out of the law, the legislature made the postman subject to a possession and delivery charge if your buddy sends you a scoop of blow in your birthday card. The SAO's argument? Don't worry, the prosecutor will use his discretion and not charge you.

Seriously, that was one argument. Another argument? Well, the law allows the defendant to try to prove he didn't know he was carrying drugs, so it's OK. You know -- because defendants ought to prove stuff. Another argument? Well most of the people charged under the law probably DID know they had drugs, so who cares if the thing violates the Constitution.

Florida is the ONLY state where there is no mens rea attached to possession, because the legislature cares about re-election, not justice. What a shame so many judges feel the same.

What Hirsch did was right and it was brave. Yeah, I said it: brave.

As for his ego, whatever size it is, it didn't get in the way of him doing the right thing. Guess some other judges here have such small egos they cannot live without being called "your honor," and so won't risk the title by doing the right thing.

Anonymous said...


word is Robert Coppel, Director of Training for the PDs office is running for judge against Maria Verde.

Secret Judge said...

To 4:50, very well said my friend.

Anonymous said...

Just so you know, in Maryland the Court of Appeals (their highest court) added the element of knowledge to their drug possession statutes.

5:50 PM--well-said. I know many Miami-Dade ASAs would use their discretion, but would they in Broward? In some podunk county where you get six months on your first M1?

Anonymous said...

Voir Dire 101:

Q: Does anyone who makes the law in Florida?

A: No.

Q: The legislature makes the law. And in fact, this judge will instruct you in a little while that you don't make the law, I don't make the law, not even the Judge makes the law, rather we all have to abide by it and follow it............UNLESS YOU ARE MILT.

Our country is born out of an appreciation of separation of powers. There is tremendous importance in understanding the separation of powers. It is that principle that allows the best version of democracy in the world.

I find it alarming when a Judge legislates from the bench. It is intellectually dishonest, taints the required appearance of neutrality and makes the courtroom a mini empire ruled by an autocrat.

Milt is bright. His zeal, academic discipline and passion are commendable qualities. Nevertheless he ought to reread the story of narcissus. His job is not to be the case, rather it is to make sure the case is refereed within the confines of the laws of procedure and evidence. He needs a good grounding.

Anonymous said...

I love how people hate Judges who interfere, except when it gets their client the CTS, instead of the 180 DCJ.

Everyone hates "activist judges" until it is their kid facing a 25 year min man for Oxy distribution, and the State won't budge, because the case is air tight.

What do you mean there is nothing the judge can do?? should I write him a letter??

Douches. All of 'em.

Anonymous said...

9:56 I recall from grade school civics case a lesson on role of the courts "(legislature) can pass laws, and others can enforce laws. But all exercise power within certain boundaries. These boundaries are set by the Constitution." see http://www2.scholastic.com/browse/article.jsp?id=4723

there is no way you passed the bar. Your career as a intern A.S.A. will soon be over.

Anonymous said...

Thursday, August 18, 2011 9:56:00 PM

How would you have ruled on the Black school children's request to attend a all White school in Alabama, would you have followed the law that said Black children cannot attend White school's?

Because that was the law created by the State legislature of Alabama, how would you have ruled?

Bubba Bob said...

Judges made the common law and a free society followed.

There is a name for when legislators make the law. Fascism.