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Monday, April 30, 2012

IF YOU'RE SICK...GO TO JAIL.

BREAKING: TheUS Supreme Court granted cert today to decide if Padilla v. Kentucky is retroactive. See below.

CBS News 60 Minutes reported Sunday evening that drug addiction was a disease:
In the battle against addiction, "just say no" is magical thinking, says Dr. Nora Volkow. She's the head of the National Institute on Drug Abuse, and after spending decades studying the brains of addicts, Dr. Volkow has determined that drug addiction is a chronic disease that physically changes the brain. Dr. Volkow has found that even images of an addictive substance, such as alcohol or drugs, can produce a dopamine response in an addict's brain, and some foods can trigger a similar reaction. Morley Safer reports on Volkow's revolutionary research into addiction, as well as on her revolutionary family history.
The segment is here. 


QUERY: Why aren't we prosecuting diabetics for excess sugar consumption? Or people with hypertension for heart disease? Why are we just prosecuting people whose disease is the use and abuse of narcotics? 
And the NY Times reports that Type II diabetes (the type caused by 
obesity)  is now an epidemic in children. Whom do we arrest? 


RETROACTIVITY:
BREAKING: THE COURT GRANTED CERT TODAY.
The big legal question these days is whether the United States Supreme Court's decision in Padilla v. Kentucky is retroactive? 
The Florida Supreme Court (Motto: "Gore Won") is holding oral arguments on the issue in June of this year. 
This week the US Supreme Court will consider a petition for cert in Chaidez v. U.S


The decision on retroactivity has far reaching consequences for many foreign nationals  convicted of a crime. As ICE steps up enforcement and is more frequently removing individuals who have criminal convictions, more people are seeking to have their prior convictions (99% of which resulted from a plea of guilty or no contest) set aside. Padilla, among other things, requires an affirmative duty on the part of defense attorneys to advise their client that a plea might result in their removal from the United Sates. The decision thus  removes the "safe harbor" that prior counsel often sought in testifying that they weren't sure whether or not they provided such advice in a particular case despite testimony about  their general practice of advising clients about removal. Without such affirmative testimony, a prior conviction can be 
vacated. 


Have a good week. See you in court. 

33 comments:

"American Minority" said...

I think the ruling will be reversed in the Chavez case because of several reasons:
1.The facts state that,"Ms. Chavez was not aware of the specifics of the scheme."
2.Ms. Chavez has been a Law abiding resident since 1977.
3.Ms. Chavez s' attorney failed to advise her of the possible consequence of her deportation as a result of her pleading no contest.

As to the 60minutes story I stipulate to your point Rump, and it brought me back to a realistic question with homeland security tighter than ant pussy, after 9/11 how does the crap get here still.
I also read Dark Alliance by Gary Webb and was astonished I remember watch the Oliver North Hearings as a kid and even as a kid it still didn't add up how a Mandate by Pres. Reagan to investigate communist weapons support and revolutionary support to the Contras went as far as Major Drug Dealing thru the C.I.A., and when the smoke cleared Ricky Ross went to federal prison Denilo Blandon` supplier turn informant goes Scott free and Oliver North feigns ignorance, runs for office and ends up with a show on Fox, go figure.'The War on Drugs"
I went to a Book signing at Books and Books on Aragon ave in Coral Gables and a federal judge sitting next to me stood and said "He left the felony division because he could not bear the differential treatment of minorities and improprieties of the AUSA's. You all should check the book out it's growing notoriety it's written by Michelle Alexander Ohio State Law Professor and Civil rights Attorney. It is a great book if you are not familiar with the many tactics used against defendants such as over charging, selective prosecution, and Min/Man waiving for white defendants. The federal Crack Law is just one of many aimed at minority offenders, also if you go to the DOJ website, you will see that white Americans account for the statistical majority of drug cases in America, most of which are Non-Violent offenses whether minority or else wise. The name of the book is titles "The New Jim Crow".

mikal said...

I handled several of the failure to advise immigration cases many moons ago. I won some and I lost some. The cases I won were fairly straightforward but there were also issues of affirmative mis-advice such as when the original defense attorney doesn't know which crimes constitute felonies and / or deportable offenses.

I have been practicing for close to 25 years and have never seen a judge or attorney fail to inform a defendant that his or her plea might result in deportation. Pleading no contest is or was the same as pleading guilty and being found guilty by a jury. (sorry for the punctuation errors but some of the keys on my phone aren't working.).

This is not an easy area of the law in which to practice and one misstep by an attorney unfamiliar with the case law on this subject could doom a client to both a loss of liberty and a flight back to an unfamiliar place and an unfamiliar language.

Anonymous said...

"Anonymous said...
Thomas is out of his mind had lawyers in one case giving closing arguments in a civil case at midnight....yes midnight!

Saturday, April 28, 2012 1:42:00 PM"

From an ex-criminal defense lawyer now in the civil world:

Wow! Judge Thomas actually made you assholes WORK. Civil lawyers are (for the most part) a great big group of arrogant assholes who would now cortroom procedure or an evidence book if one was shoved up their noses. Not saying that their aren't a small group of criminal lawyers in the same category but, by in large, MOST civil lawyers are like that. Admittedly, I am here for the money but if I wasn't so greedy, I would be back in REG with lawyers who actually know how to litigate.

Judge Thomas OR Judge Thornton would be so wonderful for the Federal Bench. I would be sorry to lose either......

LAWYER GURU said...

SAO places great value in recruiting young lawyers who can improve their TAV (time after verdict- sometimes called SAV-sentence after verdict) as well as cut down on the average TFATS (time from arraignment to sentence). It's clear from the recruiting that the SAO is seeking both longer sentences and having them imposed quicker.
Thoughts?

Anonymous said...

From 10:47 am -

That was "NOT know courtroom procedure...."

I'm too busy billing to pay attention to grammar and spelling.

Fake Old Guy said...

With Seskin and the other felony screening guy out of a job, does anyone know if the SAO is hiring for FSU? I'm really tired of chasing fees and fighting the sleazy bondsman/lawyer cabal.

Anonymous said...

Ok, just say no is stupid, wishful thinking. It won't work for an addict, because addictive substances physically change the brain.

But isn't just say no good advice to someone who is not an addict? The addiction had to start somewhere, with a first dose or drink. If the would be addict never had the first line of coke, he never becomes an addict, no?


And it is good advice to the casual user of narcotics and alcohol, to not be a casual user, isn't it?

Drug law enforcement may have its shortcomings, but I'm really not sure decriminalizing is the answer. Sometimes the law is the motivation to get people into treatment.

And don't give anyone any ideas about making it a crime to be a diabetic. Some bright guy in Tallahassee or Washington just might run with that idea, make a few points in the press with it.

I saw on The Daily Show that in response to a proposed law making a human embryo a person, therefore aborting it would be murder, another proposed making the wasting of sperm through masterbation a crime, in that the sperm was the seed of life. Makes for a good laugh and good press, but one mans crazy idea is another mans brilliant political platform.

DS said...

New Brain mapping by CAT scan and MRI have proven that the brain has physical changes due to Drug use. Also most research shows that people are pre-dispossed by their DNA to abuse Drugs , Alcohol AND FOOD.
Medical Science agrees that these are not social or personal problems but medical issues.

I still say Legalize - except DUIs-, Even IF it were personal choice, that is what freedom is about.
DS

Anonymous said...

DS...the first use is a choice, plain and simple. Once started, it becomes hard for many people to stop. Still, free will plays a big role no matter how you slice it (which is why addiction is different from most other medical ailments). Still, I agree with the overall point that addiction has a signfiicant genetic component.

Of course, I'd argue that the addictive quality of the drugs you want to legalize and the dangerousness of many of them (you say all of them) is precisely why they should remain illegal.

BTDT

Disenchanted and concerned said...

The audacity of some people running for a seat on the bench astonishes me. Here is the first in my critique of the races I believe to be the most dangerous election races:

Seskin v. Cuesta -

Cuesta should get your vote.

Cuesta, whether you like her or not, is a trial lawyer. She has spent a career in public service with numerous actual jury trials under her belt. She has handled, as both first and second chair, serious felony matters. She currently is the head of domestic representation and therefore additionally has years of supervisory experience as well as her trial experience.

Seskin's own Bio should explain to you why she is not qulaified to waer the robe. She worked for the PDO for less than 2 years. Her bio leaves off the reason for her leaving the ofice but I woud invite our media to do some digging. It was not simply because she wanted to spend more time with her children as her bio claims. She ultimately ended up at the SAO where she has spent her tenure in the screening unit. I would not insult anyone in any particular position in either office but let's face it, Ms. Seskin is not in court and she is not trying cases of any magnitude.

Ms. Seskin's lack of actual trial and legal experience is appalling for someone who wants to preside over cases. As one can tell, I do not support her candidacy and that is partly because I know her personally. Her demeanor is atrocious. She is not kind, understanding or patient. Her demeanor in that capacity, if elected to judge, would simply become enhanced.

Even if you believe my support of Ms. Cuesta to be due to personal animosity, I would ask your readers, the members of the media, and the public to simply compare their credentials in legal areas alone. Ms. Cuesta is clearly the more qualified candidate.

Anonymous said...

The difference between a diabetic and a drug user is that drug use has certain negative externalities associated with their purchase and consumption of drugs. (i.e., walk through certain inner city neighborhoods and its obvious what I'm talking about).

The more ambitious question is why aren't we legalizing certain narcotics? I think legalizing certain narcotics would address some of the negative externalities in terms of the violence and public health issues associated with (presently) illegal narcotics.

artie party info said...

Rump- very big "Artie Party" coming up. Much in the spirit of the "Miami Loves Migna" campaign that swept the judge into office a few years ago.

The Artie party will feature some big names- possibly including a Bob Marley Off-spring who will introduce the "artie be jamming 4 justice" campaign song.

Word up homie.

Anonymous said...

BIG-DUH!

Ex Blackjack Dealer said...

For approximately the last 15 years I have asked judges and prosecutors why they want to put a person in a cage for smoking weed? I have never received a valid or worthwhile response.

Our State is broke, our Counties and cities are broke, we cant find $$$ to pay teachers, cops, court personel ect.. but yet we can still find money to put a weed in a cage. Go Figure !

Anonymous said...

I have never heard of TAV , SAV, or TFATS. Not apart of this SAO training or policies. Sounds like Rod is starting in on rumor spreading.

"American Minority" said...

Question, do we really want a guy who has never eaten good Ol American Catfish & Grits, and straps their poor pooch to the roof of a car on a family trip, and seems to be a complete dweeb/dufus, to be the POTUS.Hell, even Jack Henderson put the dog in the car....IJS Lmao!

This guy Willard is a Robot, imagine his inauguration speech: "Hello-my-friends-corporations-are-people."

Anonymous said...

All this talk about elections and race-

Forget it. It is what it always has been.

If you want to make a real difference, do what you can do to make sure Seskin is not elected. Everyone will be better off if she never gets on the bench.

Secret Judge said...

Jesus Christ, some of you people are just so pathetic. To the person who left the post at 4:34, you can't even spell homey correctly. It's not homie, you white honky moron, it's HOMEY. Now go back to practicing your lame ass dance moves to Vanilla Ice. No wonder the public has such a dim view of lawyers.

DS said...

Here's the link to the Brain chemistry / physical changes w/ drugs article. The Orginal Article is from Scientific American, but the` link isto HuffingtonPost
DS

Cocaine Brain? Cognitive Decline Tied To Chronic Use Of Illicit Drug

http://www.huffingtonpost.com/2012/04/24/cocaine-brain-age_n_1449156.html?ref=science&icid=maing-grid7%7Cmain5%7Cdl11%7Csec1_lnk3%26pLid%3D154803

see also
http://www.scientificamerican.com/

Anonymous said...

Ex-blackjack dealer.....Miami-Dade prosecutors and judges aren't putting people in jail for smoking weed. Hell, they aren't even putting people in jail for simple possession of ANY controlled substances unless the person has a rap sheet the length of my arm. You sure you're posting on the right blog?

BTDT

Anonymous said...

DS.....can you explain to me again why you want to legalize drugs like cocaine when you know that chronic use leads to cognitive decline?

I don't get how the articles you cite on cognitive decline support your position on legalization (which surely would lead to increased usage). Especially since, as addictive and dangerous as it is, cocaine is not as addictive or dangerous as many other drugs.

BTDT

Anonymous said...

Legalization is not the answer.

You know you just can't leave it up to the people to decide for themselves.

I can just hear them now. "It's legal, I can do what I want."

I believe in personal freedom. This ain't one of those areas.

Anonymous said...

Am Min

You are such an idiot, it's scary.

Catfish and grits? Do you also think every black person has a straw hat and overalls, and always responds with "sho 'nuff" and "yes massa?"

Not every black person spends the summer at the fishing' hole trying to scare up some eats.

If you are black, you really do a disservice to everyone who went before you to break those stereotypes.

Please stop.

DS said...

BTDT
Not every user, hellt most DO NOT become addicts. Its the brain re-acation the causes addiction.

Most can intox without addiction.
Just DONT DRIVE BUZZED or HIGH!!

I as a Free American swhould be able to chose my intoxicant.

PROHIBITION CAUSE DRUG CRIME.

It makes NO sense to lock up drug users or buyers or even small time sellers.

And yess BTDT, come to araignments in the Felony divisions and see guys get time for buying or possessing.

At least make it a ticlet w/ $500 fine .
A guy in 21 days who gets CTS at arraignment cost us taxpayers more than $2100 with lock up ,court setting costs for bondhearing and arraignment plus cops time..

Stop creating arrest stats for personal use or purchase.

DS

DS said...

PS
The War on Drugs is FORTY ( 40 ) Years Old. I have been practicing a quarter century. I have not seen a change in the flow of arrests for drug possession at the Justice Building.
To continue a policy that does not work, is repressive , wastes resources and tax dollars is Bad Policy, if not stupid.

Legalize it.
DS

Anonymous said...

What "vice" type crime has been eradicated through criminal punishment?

Gambling?
Prostitution?
Alcohol?

Any reason to think narcotics will be the first?

Anonymous said...

DS-----You say the current system is not working, but the alternative you suggest is far worse. Did you know that the single biggest referral source for treatment providers is the justice system? The VAST majority of those who need treatment don't seek it until they're forced to do so. Legalize drugs and watch the number of addicts and homeless people and the cost of healthcare skyrocket.

The reality is that the system is working, just not working nearly as well as it should be. People shouldn't be going to jail or prison for simple possession (I don't recall what court you're in, but you seem to be the only one with clients going to jail for possession without lengthy rap sheets). The justice system DOES need to change. The answer is better use of drug courts (and mental health courts, veterans courts, etc.) and treatment/monitoring alternatives.

BTDT

PS---read the research on California's experiment with diversionary programs/decriminalization. It's been a horrible failure. Even many of the original proponents recognize that now.

Anonymous said...

BTDT-

I rarely agree with your comments, but I think you are correct with this one. Decriminalization I believe would lead to a disaster.

Anonymous said...

They just decriminalized, inter alia, commercial vehicles without signs, doing business without a license and drinking alcohol with 100 feet of convenience stores. If they decriminalize drugs, we might as well do civil litigation downtown.

Anonymous said...

6:00 pm..........even a broken clock is right twice a day ;-)

BTDT

"American Minority" said...

10:00 I did not originate the "Cat fish & Grits subject, Willard the Rich Robot did. I have eaten the two before , however I prefer Hog Snapper or Yellow tail. What would make you think that I would cow tow my name isn't "Clarence." I'm from the "New Generation," I was just being facetious.

DS said...

BTDT
Most clients go to rehab to avoid Jail, not cause they are forced into treatment.
That fact that rehabs biggest bus comes from the Courts supports my arguement, I beleive , not yours.
DS

DS said...

BDTD
If your arrested, your IN and doing time,for 24-48 hours till bond-hearing or 21 days till arraignment.
ONE HOUR is too much time for possession.
I am offended by any and all Drug Arrests.
CTS means you did time for Drugs.
And yes my guys w/ records do more, but the record is irrelevant since there is NO reason for a moment in lock-up for possession, period. IT Does NOT Matter how many priors nor what they are for. But most likely the priors are possession or lots of misdoes.
DS

DS