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

Thursday, June 28, 2012

REVERSED


893.13. A judicial love story. Or -"Possession means less than you think it does."

In a lengthy, Shakespeare and Twain riddled opinion, Judge Milt Hirsch declared to the delight of defense attorneys everywhere that Florida’s drug possession statute- 893.13 was unconstitutional under the Due Process clause of the 14th amendment (this will become important shortly) because the statute does not make knowledge of the illicit nature an element of the offense. Lack of knowledge in the Sunshine State is relegated by the statute to the ash heap of affirmative defenses, like venue or entrapment. 

The prosecution argued that this issue had been settled in Taylor v. State, 929 So.2d 665 (Fla. 3rd DCA 2006) rev. den. by the Florida Supreme Court  952 So.2d 1191 (Fla. 2007) (“tough cookies. Cert. Denied.” Id. ). 

“But would not due process by any other name smell as sweet?” inquired Judge Hirsch, citing to Shelton v. DOC,  802 F. Supp. 2d.  1289 (M.D. Fla. 2011), which found that the statute violated federal due process guarantees. 
So off to the Third DCA went the case with several dozen other defendants piling on.  Judge Rothenberg drew the assignment to write the opinion: 
"The record, however, reflects that the trial judge’s assumption was incorrect, and counsel for the defendants concedes on appeal that the only federal court whose decisions bind state courts is the United States Supreme Court. See State v. Dwyer, 332 So. 2d 333, 335 (Fla. 1976) (“A decision of a Federal District Court, while persuasive if well reasoned, is not by any means binding on the courts of the state.)”
When you’re a trial judge with an order on appeal, it helps to have talented and aggressive counsel fighting for your decision. Pity Judge Hirsch. Under a subheading “Trial court’s failure to follow the law” Judge Rothenberg leads with this gem: “Counsel for the defendants candidly concedes on appeal that the trial court’s presumptions, analysis, and conclusions were completely erroneous, but he agrees with the result.”  Ouch. 
And:  “The result, however, was a dismissal of the charges based on the defendants’ facial constitutional challenge despite binding precedent from this Court and other district courts of appeal. That result can never be 'the correct result.' The correct result would have been to deny the motions to dismiss on the authority of Taylor. The trial court was then free to express its disagreement with Taylor and to request reconsideration of the holding in Taylor en banc. While a lower court is free to disagree and to express its disagreement with an appellate court ruling, it is duty-bound to follow it.” Double ouch. 
But Judge Rothenberg was not done. She has a black belt. She went to Israel to help during the Gulf War. Saddam's Scuds didn't scare her so  she sure ain’t a scared of no federal judge,  as this subheading to her opinion demonstrates: “The trial court relied on a flawed federal trial court order."
Remember, up to this point Judge R has already got the Appellees to admit that the trial court erred in following a non-supreme court federal decision. But that wasn’t enough for her. She wanted to drive a stake through the vampire heart of her federal court colleague’s decision. No rising from the dead for Shelton, to wander the courts of Florida, randomly obtaining dismissals of drug possession cases.  
Shelton said 893.13 created a strict liability crime. Judge Rothenberg said  “nyet!”:  “Section 893.13 does not create strict liability crimes because, although scienter, or “mens rea,” is not an element of these offenses, the statute provides that the defendant’s lack of knowledge may be raised as an affirmative defense.”
There’s more to the analysis of the (flawed?) federal due process analysis, and we have the opinion below for you to peruse. But the opinion’s conclusion makes it crystal clear- without resort to quotes from Twain, Shakespeare, Paradise Lost, or Harold and Kumar go to White Castle- what the trial court should have done:
“The trial court was therefore duty-bound to follow binding precedent, not ignore it.
Reversed.”
Triple ouch. 

3D11-2244

27 comments:

Anonymous said...

I'm glad my client opted to accept the time-served plea that the State offered instead of joining in this appeal. I wonder what happens to the appellants when they get back to the trial level.

George Frobisher said...

What, is the old king dead?
As nail in door.

Anonymous said...

Jo Morrison & Elliott Scherker are two of the best appellate attorneys in town, so I don't think that Milton can blaim the loss on the lawyers.

CAPTAIN said...

Judge Suarez and Judge Emas sat back and watched the entertainment. Judge MH is still one of the best judges we have on the bench and we are lucky to have him. It could be a lot worse.

Cap Out ...

Anonymous said...

Emas was one of the best. ...

I guess now a days cap that is like being the tallest midget.

CAPTAIN said...

THE CAPTAIN REPORTS:

ERIC HOLDER IN CONTEMPT .....

AG Holder, upon being informed of the actions of the House, stated, and I quote:

"I did not have sexual relations with that woman". "Hey it worked for Bubba".

From the NYT:

House Votes to Hold Attorney General Eric H. Holder Jr. in Contempt of Congress

The House of Representatives on Thursday voted to hold Attorney General Eric H. Holder Jr. in contempt for failing to disclose internal Justice Department documents in response to a subpoena.

It was the first time in American history that Congress has imposed that sanction on a sitting member of a president’s cabinet.

The vote followed an acrimonious and politically charged debate. Many Democrats, accusing Republicans of railroading the motion to inflict political damage on the Obama administration during an election year, walked out of the chamber in protest and did not vote.

CAP OUT ...

Anonymous said...

Holder needs to call the Q

Rumpole said...

Italy has a great defense. And super Mario -who was super today. I freely admit to being influenced by the German cool dismantling of Greece and a bias against the team that knocked the lads from England out.
Italy/Spain will be a great final.

Anonymous said...

Come on guys- Milt was admittedly on tilt.
The opinion was sanctimonious and condescending and he could not in his wildest dreams have thought that an appeals panel would let him get away with what he wrote. He must have known the lower federal court decision was not binding on him and he must have seen the state court decisions finding the statute passing federal constitutional muster.

The lesson here- beyond humility and not needing to prove with every written opinion how erudite he is- is to write good sound legal decisions based on case law and not Twain.

fake Kenny W said...

Love the cut of the Italian coach's suit. The crest is very chic. Azzuri!!!!

Rumpole said...

The more I read and re-read the ACA opinion, the more I see that Roberts swallowed joining the left wing of the court to uphold the law so as to drive a stake into the heart of commerce clause activism. Wickard and Katzenback v. McClung, come in for harsh criticism. The commerce clause power was the Government's first line of defense and Roberts was ready to give the government a win at the expense of gutting the formerly powerful commerce clause argument.
Interesting.

Anonymous said...

Glad to see Rothenberg didn't take stupid Milt-bait and write a cutesy opinion. Milt is an arrogant smug a-hole who deserved to be slapped. She might has well have written: The Queen Is Not Amused.

Rumpole said...

And that is the main problem as I see it. Milt took a serious issue and wrote a flowery opinion that was so self aggrandizing, in which he deliberately attacked precedent in a manner in which he was lecturing to the appellate court- that no self respecting appellate panel would allow this opinion to stand.

For Rothenberg, this was shooting fish in a barrel. All she had to do was adhere to precedent and cases that affirm the rigid requirement of the primacy of precedent and Mllt was toast. And she did it flawlessly. She wrote an opinion that will withstand additional appellate review. Milt did not. End of story.

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Anonymous said...

This entire "exercise" by Milt was a waste of time. That being said, I too really like Milt. He is right.

IMDT said...

No so fast chunky. The Individual Mandate Defense Team will defend you from the individual mandate for $89.00 down and $72.50 per month. A better deal and experienced lawyers.

Anonymous said...

Do I get a refund if points are assessed?

Anonymous said...

I've said it a million times, an over inflated ego has no place in the real practice of law.

Anonymous said...

The JAC mandate clinic will do it for free

Anonymous said...

On Morning Joe today congressman Eric Cantor just said it was shumie time for health care in America this morning after the decision yesterday.

Big time baby.

Anonymous said...

Once upon a time the Third was a Court of which to be proud. The intellect of Dan Pearson, Schwartz’ antithesis, Phil Hubbart, Alan Schwartz, nasty and arrogant, but on point, Joe Nesbitt, a gentleman and a class act, and Wilkie Ferguson, smart and compassionate, “Betty’s Husband” as he often referred to himself. Today, the Third is a joke, as intellectually barren, as the Mojave dessert, and as intellectually dishonest as Richard Nixon’s Watergate professions. The politicizing of that Court by JEB and his lackeys, mainly Rocky Rodriguez, is largely to blame for the demise of that Court’s intellectual honesty. There was time when Third DCA precedent carried weight.

If the PD and defense bar have jewels they will take the case up and see what our Supreme Court has to say. Wonder what Fred Lewis, Barbara Pariente, and Peggy Quince would do with the opportunity to send the legislature and political zest pool a message? Our current Supreme Court gave us Jardines (dog sniff), and are not intimidated by the political assault of the right wing. The right wing, as well as the left wing, have failed to discover that with a single wing they are flying in circles, with minimal, if any, forward momentum.

Although Milt has his detractors, as do all, he deserves respect for willing buck the status quo, even when it is the unpopular and not the expedient thing to do. Milt is a good judge, who knows the law and how to apply the law, which compensates for his arrogance. He is usually on point and understands what you are arguing. He does unnerve some whose BS quickly pre-empted by him. Les we forget Rothenberg, the Alan Schwartz heir apparent, was a prosecutor in a robe, and continues her course. If I had my druthers, on any given case, I will take Milt over many others in the RGJB, at least I know I will have a judge who will understand the argument, give my client a fair shot, and not simply rubber stamp the State.

The irony is many moderate or centrists quietly complain, making no effort at restoring sanity to our Justice System. If the Right Wing can launch an assault on the merit retention of those Judges who fail to march to their tune, why not the reverse? How about targeting the Right Wing darlings when they are up for merit retention?

Anonymous said...

What is wrong with Milt? What a waste of time and money. He should know better, or does he?

Anonymous said...

Has anyone noticed that Rothenberg shows up on most high profile cases at the 3rdDCA??

Anonymous said...

Leslie Rothenberg is a low intelligence hack. say what you will about Milt, leslie cannot carry his boxers as a scholar or as a judge.

Anonymous said...

The comment at 2:48 is absurd.

You can disagree with her, but she is extremely bright and her opinions always are exceptionally well researched, written and thought through. That's why they stick. There's no reason to personally attack her the way 2:48 did.

BTDT

Anonymous said...

Rothenberg is an anomoly, and if nothing else, her opinions are consistent...consistently offensive. But the comments at 8:24 are unfair to Judge Emas and Judge Salter. If you practiced with/against them, have appeared before them, or have ever met them, it is truly apparent they both are exceedingly brilliant and strive for the correct decision under the law. the same cannot be said of ASA Rothenberg, but Salter and Emas should not be disparaged by her reputation. We are lucky to have them both on our appellate court.

Anonymous said...

"Judge" Hirsch ignored the fact that, when he put on the robes, he had to follow the law. Judge Scriven's order has absolutely no precedential value, as "Judge" Hirsch knew, but he wanted to write one of his over-long and self-aggrandizing lectures. As well, he knew that he would probably get the 39 +/- defendants off, because the State might have lost the evidence, the cops retired, etc., between the dismissal order and the inevitable reversal, so he could curry favor with the defense bar. Rumpole's comments were correct; I am sorry that he receded from them to some extent later. "Judge" Hirsch should be reported to the JQC; I may just do it myself. He is an embarrassment to the bench; it is a tragedy that he has several more years to go before someone runs against him (and that person can count on me for the full $500 campaign contribution). I am not a fan of J Rothenberg, but she was completely correct, and even moderate in her language toward him; a second-semester law student would know that "Judge" Hirsch was wrong, wrong, wrong!!!