Thursday, January 05, 2012

SLAPPY'D AROUND

Judge Juan Ramirez, formerly head honcho at the 3rd DCA, has himself a nice little blog.
called Florida Law Update. We were perusing it the other day and stumbled upon our topic for the first post of 2012.

As the new year begins, most trial lawyers (but not us) usually make some sort of misbegotten (read: drunken) resolution to try more cases. Therefore, we proudly present The JBB's first Litigation Skills Seminar of 2012 ( (c) Rumpole 2012 most rights reserved, some just tossed aside cavalierly).

Todays topic: PEREMPTORY CHALLENGES 201.

Melbourne v. State, 679 So.2d 759 (Fla. 1996) is our starting point.
When one side strikes a juror and the other side objects, Melbourne requires the court to conduct a three step analysis. Practice tip #1: If you have made the strike, remind the judge that peremptory challenges are presumed to be exercised in a nondiscriminatory manner (except in some northern counties of Florida where the courthouses proudly fly the confederate flag and the judge swearing you in as a new lawyer requires you to whistle Dixie) and the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination. Put another way- the burden never shifts to the person who made the strike, although some explanation of the strike is required.

Step one of Melbourne: A request by the party challenging the strike for the party making the strike to state a race neutral reason. Step one has three parts: he party challenging the strike must a) make a timely objection and b) show that the venire member is a member of a distinct racial group and c) ask the court the request that the other party provide a race neutral reason for the strike.

(*pop*) (that sound you just heard was the can of worms being opened.)

Part of our focus today is on the second clause the first step of the Melbourne dance: what is a distinct racial group? Lets talk a look at State v. Alen, 616 So.2d 452 (Fla. 1993).

Alen pre-dates the "distinct racial group" vernacular of Melbourne and calls it a "cognizable class". And what is a CC? Why it's "an identifiable group in the community ...distinguished from the larger community by an internal cohesiveness of attitudes, ideas, or experiences that may not be adequately represented by other segments of society."
Longtime readers of the blog know what is coming next: yes, the Florida Supreme Court in Alen did create a definition that by all objective analysis makes "Judges" a "distinct racial group." So go ahead and hum a refrain of "we shall overcome" and then continue reading.

What Alen tried to deal with was the question of who is a member of a distinct racial group? Is Rose Schwartz-Diaz, a jewish woman born and raised in the Bronx and who comes to Miami and marries Javier Diaz, a Hispanic? No. Alen says "Although a person's naive language and surname may be used by a trial judge in determining weather a potential juror can be classified as hispanic, those characteristics are not strictly dispositive."

Or as his honor Milt Hirsch might take the opportunity to say "Would not a Rose by any other name...drink a Materva and eat Arroz Con Pollo if properly romanced by the right latin fella?"

Fast forward to Smith v. State, 59 So.3d 1107 (Fla. 2011). That vexing question of figuring out who is who had not been solved completely. The Florida Supreme Court blamed the 3rd, which originally decided Smith and certified a conflict with Alen: "The Third District's opinion, which does not require that there be a threshold demonstration that the juror was a member of a protected class, has the potential to undermine (civilization and all we hold dear?) the very purpose for the protections required to prevent invidious discrimination in jury..."
selection.

So Smith instructs Judges to turn to potential jurors and say "Madam, are you now or have you ever been Hispanic?"

We end our lesson with Judge Colodny and Garcia v. State. When you don't follow Melbourne precisely, things go bad fast. The actual decision in Garcia turns on the court's failure to follow the third step of Melbourne, but for our purposes the failure to follow the first two steps are illustrative of what needs to be done.

In Garcia, the defense struck a juror . The State objected: "We would ask for a race neutral reason" and without the state showing that the juror was a member of a distinct racial group, (step 1-B) and without the defense waiting for the court to ask for an explanation, the defense immediately proffered a race neutral reason: prior jury service, thereby waiving any appellate challenge to the court's failure to dance the Melbourne's first two steps properly.
The second step of Melbourne requires the court to ask the proponent of the strike to provide a race neutral reasons. Things were hopping during voice dire that day in Judge Colodny's Courtroom, and as the record makes clear all the state did for the first step was make a timely objection. From that point matters proceed swiftly and not according to Melbourne, which clearly states as follows:

Step one: a) Object cha cha cha...b) show the potential juror is a member of a distinct racial group cha cha cha...c) ask the court to ask opposing counsel to proffer a race neutral reason cha cha cha...

and then...dip and twirl and spin and twist and proceed to step two:
the proponent of the strike gives a race neutral reason cha cha cha like
"He's a Cub fan" or "he once ate a hot dog in browierd" or "he stays through the second half at Heat games." etc.

You see, to be a good trial lawyer, you need some rhythm.

CLE crédit will be applied for. Stay tuned.

See You In Court.








36 comments:

Who Do I Read? said...

I have a real (not imagined) problem with a Judge who sits as supervisor to an entire judicial circuit in public view admitting to following this blog site.

No offense but some comments, and even post on the JBB have been very insulting if not libelous, crude and even sexual in nature toward jurist, including outstanding members of the bar, not to mention high profile litigants.

To think that Judge Ramirez or any Judge would think to tell the world he follows such commentary seems wrong if not unethical.

http://www.blogger.com/profile/08208969791287255274

Anonymous said...

**yawn**

You're no Irving Younger.

Former Judge (*happily enjoying life) said...

Hey Rumpole ... It has been years for me, but isn't it a "PERemptory Challenge" vs. "PREemptory Challenge"?

I am not being "Milton-y", but I was just wondering my good friend.

Rumpole said...

Let me explain something to you 1:17 am, Judge Juan Ramirez is a jurist of the highest integrity and has a discriminating taste when it comes to his reading. He doesn't just read anything. He's a busy man. He must carefully select on those media outlets that provide him with outstanding legal analysis and award winning** social commentary.

So take your problems and stick them where the sun don't shine.

I challenge you to name one "sexual in nature" or "crude" post about anyone on this blog.

As to "insulting" "jurists"? Well, why do you think people read this blog?



**We received an honourable mention award from the prestigious Romanian bloggers society.

D.S. said...

117
is it different to admit reading the Herald, or watching This week w M. Putney >
DS

Mitt Romney said...

Just a brilliant analysis. R- there's a place for you in the new Romney administration next January. And for the rest of you folks, why not drop by and donate and help us WIN the white house in 2012.

Mitt Romney.

Anonymous said...

Rumpy - HUGE reversal of jackie scola with related smack down to scruggs! where's the post !!!???

Anonymous said...

this analysis demonstrates how complex trials have become and how important it is to be organized and bring materials to trial. I am constantly shocked at the number of attorneys who do not have with them for trial the west's florida statutes book which contains, the evidence code, rules of criminal procedure, jury instructions, statutes. it is your rifle, bring it.

Anonymous said...

1:17.......get some sleep.

There's nothing wrong with Ramirez's following this blog (you don't think others are doing the same thing?).

I'm no Ramirez fan, but I respect his willingness to do so openly (unlike the others) and have never heard anyone suggest that he was anything other than fair and honest.

BTDT

Anonymous said...

Slappy challenges are a perfect example of a well-intentioned but incredibly abused tool that the courts have done a poor job addressing.

Too many attorneys make specious objections. And, I've always found it amazing that some of the ivory tower appellage judges are so quick to accuse trial lawyers of misconduct (serious, racist misconduct to boot) based on their speculative view of how peremptories are used.

BTDT

BTDT

Anonymous said...

I just like saying "I'd like a slappy challenge." Nyuk nyuk nyuk.

Anonymous said...

To 8:40 a.m., the reversal of Jackie Scola (Cliff Berry, Inc., and Smith v. State) is also notable for the dissent, written by Leslie Rothenberg. Talk about two peas in a pod, each able to see only the prosecution's side of a case.

The other remarkable thing about the opinion is how it shows, once again, Rothenberg's utter inability to write persuasively. Instead of carefully crafting her words, she uses bold emphasis over forty times to try to bludgeon the reader into submission. Very sad.

Anonymous said...

You wrote:

D.S. said...
117
is it different to admit reading the Herald, or watching This week w M. Putney >
DS

Friday, January 06, 2012 7:13:00 AM

Answer: Yes.

Why? Because unlike this blog site we know the author and can determine what if any concerns legally or not can be applied to what Judge Ramirez is endorsing while linking to the 3rdDCA web site.

In this case we have no clue who Rumpole is, NONE! For all we know Rumpole could be a convicted child rapist using a computer someplace in an American prison.

While I doubt Rumpole is a child rapist, the question can still be raised.

But the fact is that moderated libelous statements made against jurist and members of the bar have made there way onto a blog which is now being endorsed by a Judge of the 3rd DCA.

Seems wrong odd if not unethical to say the least.

Anonymous said...

Wednesday, January 04, 2012 8:49:00 PM

CAPTAIN said...
The Captain Reports:

Big Win for Mike Pasano:

from the DBR:

A state appeals court reversed the convictions of an environmental services firm and a project manager today in the fuel theft scandal at Miami International Airport.

The 3rd District Court of Appeal panel split 2-1 in a laborious, 105-page opinion throwing out the convictions of Cliff Berry Inc. and Jeffrey C. Smith and sending them back for a new trial.

The court faulted Miami-Dade Circuit Judge Jacqueline Hogan Scola for flawed jury instructions and prosecutors for failing to disclose testimony from a key witness, fuel farm maintenance supervisor Brian Schneir, would greatly extend the time and extent of the alleged airport fuel farm thefts beyond what was disclosed in pretrial discovery.

Judge Barbara Lagoa wrote for the majority, with Judge Richard Suarez concurring. Judge Leslie Rothenberg would have upheld the convictions.

The cleanup company was accused of bribing airport contractors and filing false invoices as it stole fuel in 7,500-gallon batches while working under a Miami-Dade County contract to remove petroleum-contaminated water.

Carlton Fields shareholder Michael Pasano, who represented Smith, said he was grateful for the decision. The attorney noted Smith was jailed for three years until his release in December on bond in time to spend Christmas with his family.

“This opinion is a rewarding way to start the new year,” Pasano said.

Cap Out ...



Anonymous said...
I was the court reporter on the state versus Cliff Berry, Inc, et al. I am proud that my trial transcript was very useful in overturning the convictions.

It was not an easy trial to report and I am sure that if it was reported by a digital recorder, the parties would still be waiting to this day for the appeal to be perfected.

Recently in the newspaper there was an article about an unprofessional court reporter who failed to prepare a homicide appeal. That gives us all a bad name.

Somehow it doesn't make the paper if a judge, attorney, or someone else is responsible for "burning" a jury and trial. If it does make the paper, it's a one-inch article.

Now that I am replaced by a digital recorder, I wish y'all the best of luck with your equipment. Too bad you can't buy insurance for a faulty record. A stellar realtime court reporter with higher certifications is the best insurance.

Anonymous said...

- deep breathe -- {here goes}

Rumpole,
With all due respect I must join in 1:17 a.m.'s comments re. crude and (boarderline)sexual comments regarding certain members of the Bench and Bar.
I was a bit surprised and disappointed.
That said == I don't understand what could be wrong w/ Judge Ramirez acknowledging reading the blog...he's only a judge. Might do them all some good to talk to real lawyers.

CAPTAIN said...

to 8:40 AM.

LEARN HOW TO READ -

On Wednesday evening (10:48 PM to be precise), The Captain posted on this blog about this reversal. Whether it's Rumpole or The Captain, you can always count on timely, insightful blogging when you visit the JBB.


The Captain Reports:

Big Win for Mike Pasano:

from the DBR:

A state appeals court reversed the convictions of an environmental services firm and a project manager today in the fuel theft scandal at Miami International Airport.

The 3rd District Court of Appeal panel split 2-1 in a laborious, 105-page opinion throwing out the convictions of Cliff Berry Inc. and Jeffrey C. Smith and sending them back for a new trial.

The court faulted Miami-Dade Circuit Judge Jacqueline Hogan Scola for flawed jury instructions and prosecutors for failing to disclose testimony from a key witness, fuel farm maintenance supervisor Brian Schneir, would greatly extend the time and extent of the alleged airport fuel farm thefts beyond what was disclosed in pretrial discovery.

Judge Barbara Lagoa wrote for the majority, with Judge Richard Suarez concurring. Judge Leslie Rothenberg would have upheld the convictions.

The cleanup company was accused of bribing airport contractors and filing false invoices as it stole fuel in 7,500-gallon batches while working under a Miami-Dade County contract to remove petroleum-contaminated water.

Carlton Fields shareholder Michael Pasano, who represented Smith, said he was grateful for the decision. The attorney noted Smith was jailed for three years until his release in December on bond in time to spend Christmas with his family.

“This opinion is a rewarding way to start the new year,” Pasano said.

Cap Out ...

Wednesday, January 04, 2012 10:48:00 PM

Rumpole said...

In all seriousness can you please point to one inappropriate sexually related post I have made about a judge or anyone? I would never do such a thing and I promise you I screen out hundreds of such comments a month. You have no idea the amount of sex that -based on the comments and emails I receive- is taking place in the Miami courthouse.

As to the Judge Scola reversal. I will get to it. I am a bit busy in trial. It should end today and my celebratory hangover should be over tomorrow.

Fake Tannebaum said...

I will discuss the Juan Ramirez reading habits with the Judge over a cafe latte at Starbucks - Manuel my personal barrister will prepare whatever drink (grande on me) that the judge desires. Lets face it, what the Judge needs to do it tube Rumpole and read my blog. Did I mention I have a blog? All the starbucks regulars know I have a blog. And they are suitably impressed.

I conduct a lot of business at my local work starbucks. I tweet there as well. All just part of me being me.

PS: DEATH TO ALL MARKETING COACH/LAWYERS!!

Anonymous said...

Don't let them bait you Rump. Your posts are not racist, sexist, or any other "-ist."

The comments often are. I know because I occasionally author those comments, usually to point out some inequity or using some sort of black humor to make a point. That may be juvenile. I can accept that.

There is no problem with any sitting judge following this blog. Maybe he is a football fan. Maybe he wants to know about complaints and concerns in the courts. Maybe he is just a fan of the first amendment, and loves to see it at work. Who knows and who cares?

1:17, I'm not sure why it is ok for you to be so familiar with this blog, yet judges cannot be. You seem to have been able to survive the horror, why can't a judge?

Anonymous said...

If you ever had the "pleasure" of appearing before Juan Ramirez you would join me in wondering how he ever made it to the DCA in the first place.

The fact he reads this blog is a big so what.

He is an average judge and certainly much better than Leslie (the hanging judge) Rothenberg.

At least Juan gets it right sometimes.

Leslie simply cannot ever give a defendant a break no matter how bad the error.

FRIDAY SHUMIE TIME said...

Shunie time for all of us. First Friday ST of the year!

Also ST for Ramirez. This blog will bring him down.

Anonymous said...

I get that Rothenberg is pro-law enforcement, but, frankly, am not offended in the least.

I can understand why so many are frustrated with her rulings against their clients (we all hate to lose and many of us are sympathetic to our clients). But, Rothenberg makes good decisions and always has a good explanation. More importantly, I live in this community and have no problem seeing violent criminals go to prison.

It's nice that at least some judges remember where they came from and understand how dangerous some of these folks are.

BTDT

Anonymous said...

Maybe I would be feel better if it was Judge Ramirez's private blog and was advancing his personal views on certain subjects.

But what I find is that he has listed "My Web Site" which links to the 3rdDCA web site, a State of Florida web site url NOT Judge Ramirez web site. That caught my eye and bothered me deeply.

The link just say so much on his Blog page entitled About Me.

"American Minority" said...

How interesting,those northern county court houses with their confederate flags.How I admire the percussion of the Peremptory cha cha cha;How about the dade county tango where the the subject for challenge cause is sometimes rehabilitated and 1-2-3-.
Rump awesome blog in, my opinion one the best in the country. Keep up the good work! The complainers are plenteous, but the advocates are few.

Anonymous said...

Fake tannenbaum, please clarify something for me. What's the difference between a "barista" at Starbuck's and a "bartender" at every other establishment?

Anonymous said...

BTDT - you are an idiot. always have been, always will be.

Seriously.

you pervert the system with your lack of understanding and commitment.

Photo Swap, Why? said...

Judge Ramirez has changed his Blogger photo from a pic of him dressed in the Black Robe of a Judge to a personal photo, did the rants in the comments section have anything to do with the photo swap?

http://www.blogger.com/profile/08208969791287255274

Anonymous said...

right on BTDT. At the end of the day most of us live here and all the violent crime here needs to be dealt with seriously.

As defense attorneys we might hate to admit it but some of the career criminal sentencing laws might just have succeeded in helping the crime rate drop from the 1980's and 1990's to the much much lower crime rates of today

D.S. said...
This comment has been removed by the author.
Proud Miami Defense attorney said...

BTDT and 550 pm:

you dont get it.

rothenberg is DANGEROUS.

she believes - and always has believed - that she is above the constitution. she believes she is omnipotent. she believes she is infallible.

of COURSE we all hate crime

Of COURSE we have revenge fantasies against people who do bad things

of COURSE we would strangle the person who harmed our families wiht our bare hands

but you are a detached advocate with a higher calling . if you cant separate personal emotion from the importance of defending people accused of those worst crimes, then you should be OUT and practicing insurance defense...or be a prosecutor.

we do this because we live in the greatest system of justice. we do this because the state has awsome power which in the blink of an eye can convict the and kill the innnocent - see rumps post today. Sound quaint? 20 years later and almost 400 trials later, I still believe it.

i dont label people. i dont judge people, in a criminal case. i do this because I believe in the constitution, and an errosion, and half hearted effort in defense, and playing judge or jury as defense lawyer, lets people like rothenberg - who would just as soon dispense with protections for the accused - creep one step further toward their goal.

sounds harsh but...

first they came for the murderers,and i didnt speakout because i was not a murderer

then they came for the rapists and i did not speak out because i was not a rapist....

you get the picture.....

D.S. said...

BTDT
Sorry but you are wrong on Rothenberg. I am born n raised here , my family has been here in Miami, since 1941, and yes we have been victims of violent crimes. I , like you HATE violence n crime. Come into my house and if the dogs do not get you my 9mm will.
But JUDGES are supposed to be neutral. Like Refs. Not be cheerleaders for one side. I was in Rothenberg's Division for over a year n a 1/2. She always acted as a super SAO Division Chief. She has never been neutral nor fair nor balanced.
Judges that rule always for the the STATE belong in the USSR, Cuba, China and Arab totalitarian societies. WE deserve fair, meaning neutral Judges, a fair hearing not a game where we go thru the motions and then the Judge rules for the State.
Being in front of Leslie is like being in front of Gail Levine on the bench. Great ASA but not a FAIR Judge. I want an opportunity to try to convince or persuade the Judge, not argue w an opponent in Robes whose mind is made up.
DS

PS: Personally I LIKE the Lady. Nice person, Good Mom. Just not a FAIR Judge.

Anonymous said...

DS?

A 9mm? Really???

No stopping power, buddy. Go out and get yourself a man's gun.

Anonymous said...

DS-

You should shoot 5:35 in the face. See what he says about stopping power then.

Anonymous said...

I too had two very fair trials before Leslie Rothenberg but, boy is she a prosecutor with a robe.

We all want fair judges. We really don't like judges who lean too far in either direction.

One other thing, Leslie was always nice and respectful but, that only makes me like her and not her as a judge.

Anonymous said...

I tried a case in front of Rothenberg as well. She was entirely fair.

The reality is that she can always defend her position. Did she get reversed regularly? NO. What's that say?

We need judges like Rothenberg to balance out the many in Miami who are only too happy to dump cases.

BTDT

Anonymous said...

Many years ago I tried a case in front of L. Rothenberg. She actually made objections for the State and sustained them. She accused me of misleading the jury in voir dire when I was reading directly from the jury instructions.

What she did not like was that my voir dire was effective and the ASA did not know what to do about it. It just happened to be her old trial partner David Ranck.

When I went sidebar and asserted to her that it was Mr. Ranck who was trying the case for the State, not her, she threatened to hold me in contempt of court.

When the trial was over she called me back to chambers, and having known her for several years, she asked me if I really thought she was "that unfair"? I told her that yes I did, but if she went home at night and was able to sleep believing she was doing the right thing, then that is all that should matter to her, not my opinion or anyone else's.

There have been many pro-prosecution judges over the years, Ellen Morphonious and Richard Fuller come to mind, but they all seemed to save that bias for the moments that belonged to them, not the jury. Leslie could never be that way. She felt her job as a judge was to aid and assist the prosecution at every phase of the proceedings.

She truly believes, to this very day, that all defendants are guilty and looks at each case accordingly. She was a Nancy Grace in robes.

If ever a judge should have been a cop, it is her. But then again, there are cops who actually know the difference between what they believe and what they can prove.