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

Tuesday, January 31, 2012

THE PONY EXPRESS

11:35 PM: Our Miami Criminal Defense Attorney (MCDA) leans over in bed and picks up his iPhone and says "Siri wake me up tomorrow at 6:30." Siri responds affirmatively. 
6:20 AM. MCDA's coffee maker, having been programed, grinds a set of beans and begins to brew coffee. 
6:30 AM. MCDA wakes up. He reaches over to his iPad on the night stand and checks his email account, scans his Twitter feed and looks at the headiness  of the NY Times on line. 
7:45 AM: MCDA's GPS in his car alerts him to an accident on US 1 and recommends he turn off US 1 and proposes a route through Coconut Grove to I-95 and the courthouse. 
8:33 AM. Once at the courthouse parking lot, MCDA reviews his daily calendar on his iPad and then looks through some legal papers that have been scanned into a file. He logs on to Google and looks at a client's file he has stored in Google docs. 
9:27 AM. After an easy morning in court, MCDA heads to his office. On the way he uses the bluetooth cellphone connection  in his car to return a few client phone calls. 
10:11 AM. MCDA arrives at his office and picks up the mail. 
There are a stack of twenty two court notices that have been mailed to his office. 21st century technology stopped dead in its tracks courtesy of the Miami Dade Clerk's Office. 


Welcome to the practice of criminal law in Miami circa 2012. When it comes to schedules and calendars and notices from the clerk, there is not much difference in the practice of law today from 1982- thirty years ago. 
Thirty years ago you didn't have a cell phone or a beeper. Nothing about your TV was flat if it was working. The word "Internet" didn't exist in most dictionaries (neither did Al Gore ). If you were sick you didn't get a CAT scan. An X-ray sufficed. Look how far we've come (Newt Gingrich excepted). 
But what happened to the Dade County Clerk's Office? It's as if some evil villain from Star Trek has frozen the clerk's office just as it was in 1982.
How many of you would sign up to receive emails from the clerk's office as an official court notice? How much money would that save in paper and postage? What if you could add your client's email address as well? But who's going to explain to Harvey Ruvin what an email is? 


Here's a comment we received the other day:
Anonymous said...

E-filing? What's that? Oh yeah, that's the thing they do in Broward.
What Brown should be ashamed of is that court notices for criminal are actually MAILED to attorneys. Mailed- like they did in the 1940's
Here's an idea- and stick with me on this. The county buys a Commodore 64 computer off of ebay. They buy a copy of Windows 95 and a copy of Adobe 7.0 from 2006. They hire a computer programmer from any of about 36 technical schools in Miami or even from a local university. The computer programmer programs the above mentioned computer to print the court notice to electronic format. They then take the electronic format notice and they send it via email to the attorney. Voila, no more paper notices being mailed out by the thousands.
My receptionist is 17 and even she asks why the court mails a court notice to me for a date I've known about for three months. Or the infamous Notice of Cancellation postcard which usually arrives after the cancelled date. There's more taxpayer paid technology in the Marlins' stadium locker rooms than there is at the Clerk's office.
Okay, I'm out. Judge Brown and I gotta go buy some carbon paper at Zayre's.
Rumpole notes: There's more truth to that comment than humor.
See You In Court. 

Monday, January 30, 2012

THE CAPTAIN REPORTS:

WELCOME WELCOME TO THE REGJB ....

So, you may be noticing some new faces and some old faces around the building this week. Lots of boxes moving in and moving out. Can't find a Judge?

Welcome back Judge Victoria Sigler. You can find her in courtroom 4-8; she took over Judge Cueto's division.

Welcome back Judge William Thomas. You can find him in courtroom 4-2. He took over Judge Zabel's division.

Welcome back Judge John Schlesinger. You can find him in courtroom 6-4. He took over Judge Trawick's division.

Welcome for the first time Judge Valerie Manno-Schurr. You can find her in courtroom 2-8. She took over Judge Firtel's division. If any of you know anything about Judge Manno-Schurr please share your knowledge with our readers. She comes from Civil. She knows nothing about criminal. She has never sentenced a criminal defendant - ever. (She did shadow Judge Firtel for a few calendars). Provide her with some case law; write a legal memorandum; give her some guidance.

Welcome for the first time (sort of) to Judge Samantha Ruiz-Cohen. You can find her in courtroom 2-4. She takes over Judge Tinkler Mendez' division.

Other moves:

Judge Rosa Rodriguez can now be found in courtroom 3-2. She takes over Judge Ward's ROCourt division.

Judge Tinkler Mendez can now be found in courtroom 7-2. She takes over Judge Scola's Back Up division.

Judge Firtel can now be found in courtroom 4-6. He takes over Judge Rodriguez' Back Up division.

AND LAST, BUT CERTAINLY NOT LEAST, WELCOME BACK ONE OF THE BEST JA'S THE REGJB HAS EVER KNOWN.

Welcome back to Diana Petitto. She was Judge Pineiro's JA during his years on the bench. After he passed away, she joined Judge Manno Schurr in civil. She re-joins the REGJB family. Please drop by chambers in Room 223 and say hello to Diana. She would love to see all of you.

CAPTAIN OUT .....

Sunday, January 29, 2012

THE UN DEAD

A few thoughts on Florida's upcoming primary:


Newt Gingrich is a vampire. He is the un dead. He cannot be killed without a wooden stake  though his heart (or a few more steaks from the Palm- Newt's getting portly) and getting beat in Florida, which is a probability come Tuesday,  will not do it. 


After the Florida primary 10% of the delegates will be chosen. Up coming primaries include Alabama, Georgia, Missouri,  Tennessee, Louisiana, and Texas. All southern states and all states that The Vampire Gingrich will do well in. 


Note to Mitt: If you ignore Newt again after beating him in Florida, he will arise at night and suck the blood from your campaign. Again. 


THE SUPER BOWL.


The Giants being a 3 point underdog in this super bowl is like someone saying to you in 1999 "You know, Apple might be a good stock to buy a few thousand shares of." (October 1999- $75.00 a share.) 


We are reminded of the best super bowl score we ever made: the famous 1979 line. 
The Steelers were back in the super bowl for the third time. They opened at 2 1/2 point favourites and the money pored in (ours included.) The line went to 4 and then 5 1/2 before settling at 4 at kick off. 
The Steelers won 35-31. Those who had the Steelers -2 1/2 won. Those who had the Cowboys + 5 1/2 won. Those who had ether the Steelers or the Cowboys at 4 pushed and got their money back. It was our first five figure  profit from a bet  (we had the Steelers - 2 1/2 and the Cowboys +5, which is called "a middle"). The only people who lost money were the books. 


We don't know if this is a game to middle. We like the Giants, no points, and take the money odds (+120) meaning bet ten bucks and win twelve (only in America!). 


We'll keep you updated about our thoughts of securing your retirement with this super bowl, including our exclusive lock on the coin flip. 


Coming this week: More about electronic filing, or "Joel Brown, Harvey Ruvin, and the revival of the  Pony Express." 

Saturday, January 28, 2012

Welcome to the 21st Century

Good Saturday morning. Before we begin, a little business:


There are two Circuit Court Criminal Judges designated as the emergency judges for this weekend: Samantha Ruiz Cohen and Vicki Brennan. Will Thomas has the Circuit Court Civil duty. We have been assured that callers will be treated in a courteous manner and all calls will be promptly returned. 


The inside rumor is that the Court Administrators are considering adding a customer loyalty program: every time you get an emergency order signed on the weekend you will get a loyalty card stamped. Five stamps entitle the customer to a free cup of coffee at Au Bon Pain. 


Also being considered is outsourcing the entire operation to India: "Hello, this is Pandhari, how may I be of assistance to you this emergency weekend?


We've done a pretty through search of the Federalist Papers and we're pretty sure the founders didn't want anyone becoming president whose name was Mitt. It falls under the writings about avoiding embarrassing the presidency to foreign nations. But then again if that was true, how do we explain eight years of W? 


State Attorney Mike Satz in Broward has a challenger: Chris Mancini. 
Let the "anyone but Satz" campaign begin!


Speaking of Broweird, they are way ahead of Dade in implementing E-filing. What an embarrassment for our circuit. What can Brown do for you? 




We guess this idea is probably too good to be implemented, but the Feds really got the e-filing system right and could someone explain to us why Florida couldn't have bought the whole system and implemented it State wide? Or is Florida hearing for as many different e-filing systems as there are counties? 


Something tells us the Florida court system  will be dragged kicking and screaming into the 21st century. Especially since as late as 1998 the system seemed so comfortable with living in the 19th century. 


Enjoy your weekend. 

Wednesday, January 25, 2012

EMERGENCY!

Here is the situation: You are an attorney and have a client ordered released on house arrest  a few days before Christmas.  It is now Christmas Eve and your client is not out. Corrections has made some sort of mistake (as shocking as that may seem. By the way, Dade Corrections confirms the bond for Al Capone is almost processed and he should be released shortly.)  What do you do? What CAN you do?


You can call the on duty emergency Judge for help. The Eleventh Judicial Circuit web site maintains a list of the emergency on duty judges for the criminal and civil and family divisions (although for the life of us we cannot imagine what emergency a civil lawyer could have- "Judge, the bank has short changed us $1.67 on the interest on the judgment and we need that fixed before Monday." ? Whatever.)


One such lawyer had such a problem this past christmas eve. He did not get satisfaction from the on duty judge for criminal court. Indeed, he did not get a call back although he left several messages.  Perplexed that the on duty criminal judge would not return his call, the attorney -thinking that the duty judge's phone must not be working- called the on duty civil judge. Enter Judge Gil Freeman who saved the day for the attorney and his client. She was by all accounts understanding, courteous, professional, and helpful to an attorney almost out of options.


Here is the letter which obviously lists the criminal court judge in question. But before you read it, try and guess who was less than helpful in this situation (including the allegation that he hung up on the attorney when he finally picked up the phone once he was explained what the emergency was.)


(Hat tip to South Florida Lawyers for 
the letter. )


Hint: 


“This rudeness is a sauce to his good wit, 
Which gives men stomach to digest his words 
With better appetite.” 

William Shakespeare, Julius Caesar. 

Hirsch, M.complaint.adm.Judge

Tuesday, January 24, 2012

STATE OF THE UNION

STATE OF THE UNION:


We'll live blog for a bit during the state of the union address. So feel free to post your comments which will go up just about instantaneously. 




STATE OF THE STATE:
We think we have to side with the critics of the Captain's last post. From what we know, Mr. Labora is Hispanic and his decision to announce to run as Alex Jimenez Labora is no real problem for us. People are entitled to run for office in a manner in which their ethnicity is reflected in their name. The problem arises with individuals who co-opt the names of their spouse or long removed family members in order to capitalize on perceived ethnic advantages that they're  not otherwise entitled to take advantage of. 


The fact of the matter is that an individual's ethnicity means nothing regarding their intellectual ability to perform an elected office. However, to the extent that the experience of being a member of a minority may help that individual in understanding the minorities that they may be required to judge or otherwise render a decision about, a person's cultural experience is just something that cannot be separated from the person. 


This is a slippery slope. In the end we would prefer a society where a person is judged by the content of their character rather than the color of their skin. MLK knew a thing or two. 




Go ahead and live blog- the comment moderation is off for a bit. 

ELECTION CENTRAL: SANTOVENIA V. LABORA

THE CAPTAIN REPORTS:

Election Central .....

Circuit Court Group 47. Maria de Jesus Santovenia now has an opponent.

An Attorney using the name ALEX JIMENEZ LABORA has filed to run against Ms. Santovenia for the open Circuit Court seat.

BUT, HOUSTON WE HAVE A PROBLEM .........

There is no Alex Jimenez Labora that is licensed by The Florida Bar to practice law in the State of Florida.***


The Florida Bar does list an Alexander J. Labora as an attorney who has been practicing law in Florida for 18 years. (He also happens to be married to one Judge Deborah White Labora).

Now, suffice it to say that both Horace and I have always been big supporters of Judge Deborah White Labora and the Drug Court Program on this BLOG. But, fair is fair. And in the past, when someone has filed to run for Judge using a name different than the one they are licensed under, and when that different name just happens to be an Hispanic name, we must call Mr. Labora out on this.





***We checked at SunBiz.org for the name Alex Jimenez Labora and we were only able to find an Alexander J. Labora listed as an RA and/or an Officer in three different corporations. We also checked Fictitious Names, Limited Liability and General Partnerships. We did find one listing for an Alexander Jimenez PA that was formed in 2008 but the addresses do not appear to match up to Mr. Labora. Mr. Labora does state on The Florida Bar web site that his firm name is Alex Jimenez Labora, but there are no corporations or fictitious names found searching "Alex Jimenez Labora".



Mr. Labora specializes in foreclosure defense, bankruptcy, commercial transactions, personal injury and probate. He went to school in Mexico at Universidad IberoAmericana graduating with a chemical engineering degree in 1979. He furthered his education with an MBA obtained in 1983 at the Wharton's School of Business at the Univ. of Penn. He then went to law school at the "U" and got his JD in 1992. He has been a Hearing Officer in the 11th Judicial Circuit since 2010.

For the record, there are now four contested Circuit Court races. Also, there are currently four contested County Court races. The only non-incumbent who has yet to draw a challenger is County Court candidate Tanya Brinkley in Group 28.


JUDICIAL APPOINTMENTS UPDATE:

We are waiting to hear from Governor Scott on the replacment for Judge Scola.

The JNC sent six names up on December 16, 2011 and the Governor has 60 days. Those names are:

Miguel de la O
Richard Hersch
Alan Sackrin
Rodney Smith
Deborah White-Labora
Bonnie Riley


The JNC is accepting applications for the following open seats:

County Court - the seat of Norma Lindsey (she was elevated to Circuit); application deadline is January 30, 2012

Circuit Court - the seat of Julio Jimenez (he passed away last week); application deadline is February 16, 2012.

Captain Out .....

Monday, January 23, 2012

THE EYES OF THE NATION

The traveling circus called the Republican Primary (Motto: "Did you realize Obama is black??") has moved to sunny Florida. The eyes of the nation are upon us. What to do? What to do? 


We Miamians know what to do when the eyes of the nation are upon us. 


Lets start with a good old fashioned MIAMI RIOT!! 


We did it for the 1989 super bowl and for that last international conference of some sort. Lets have a riot!


What else? Well remember, this is the state that had a former  supreme court justice indicted for  drug trafficking.  And then he jumped bond!


That's right, all you wet behind the ears young ASAs from Backwater, PA and you idealistic PDs from Hicktown, Indiana, we had a supreme court justice who trafficked in Marijuana for a little income supplement. (FYI: the name of the justice and the case won't come up in a Google search. But it's a great trivia question: who was it?) 


What else? Well perhaps one of our senators can reveal he's a transvestite on the weekend.  Nah- this is Florida, we need something really kooky. 


Well, we'll all just have to wait and see. But be assured of this: our State's proud history of doing something absolutely, stunningly, embarrassing and stupid ensures that we will not drop the ball when the nation is watching. 


See You In Court. Watching and waiting. This ought to be good. 

Friday, January 20, 2012

THE BEST

UPDATE: Saturday night at 6pm, our prediction for the South Carolina Primary: Newt Gingrich 40%; Mitt Romney: 29%,  Ron Paul: 15%; Rick Santorum: 14%.
You read it here first.
FYI: For you Paul supporters here in Florida, you will be disappointed as your candidate will not be on the air here at all, and will spend very little time in the state. Florida is a winner-takes-all primary for its 50 delegates, and the enrollment procedure which doesn't allow independents to register vote in the Republican primary at the last moment make the contest a non-starter for congressman Paul. 




It's mid-January and a young Floridian's thoughts turn to......

PIZZA! 

Why not? We've done posts on the best bar-be-que,  so why not a conversation on the best pizza in Miami? 

The conversation starts with two: Anthony's Coal Fired, which has several outlets in Dade and Broward (and serving a pie to those lunkheads north go the border is a definite no-no in our eyes) and Steve's Pizza at 12101 Biscayne Boulevard- in  North Miami on US 1 next to the Home Depot. 

Anthony's Coal Fired has that coal fired oven smoky taste. The sauce and crust meld nicely and there are several great toppers that make the pizza sing. Our favorite it to have them put the Eggplant Marino on top of the pizza. Anthony's also has great chicken wings and a winning salad.  You can catch us at the one just south of Dadeland on US1. 

Traveling north on US1 takes you to Steve's Pizza, who has been around since it was battling "My Pi" in South Miami for the title of the best pizza in South Florida. At Steve's it's all about the sauce and their secret ingredient,  which we strongly suspect is a large dose of sugar. The sauce makes the pizza and we've never had a bad slice. Steve's is a small pizza joint, serving slices and pies for the Jockey Club crowd nearby. There's not much ambiance, but then you don't need much when all you want are a few good slices. 

Honourable mention: Hanging out on Coral Way just off of Brickell avenue, and close enough to the REGJB to dash over for lunch,  is Tutu Pizza, the pizza place cousin of Tutu Pasta which is right down the block.  Tutu pizza is all about being thin. There is  a coal fired oven that dominates the interior of the restaurant. The pizza is thin and crispy with a nice dose of cheese melting around a sauce that is much lighter than that from Steve's or Anthony's, giving the slice a nice warm orange glow. The crust is nicely blackened with the coal fired smoky finish. Every pie comes with a small pile of fresh basil to sprinkle on your slice. You could do a lot worse for lunch after a long morning in court. 


Wednesday, January 18, 2012

MOVING ON

Life is for the living.  No matter how hard it is sometimes to move forward after a terrible loss, we have no choice. We have to breathe in and out and put one foot forward of the other and move and live our life.


We joined the great Wiki web black out. Take a look in the upper left hand corner of the blog.


DOM represented himself on a traffic ticket at the REGJB the other day. 
Welcome him home when he gets out tomorrow. 


A SECOND CHANCE


The supreme court gave an inmate on Alabama's death row a second chance to appeal the denial of his motion for post conviction relief. You will recall that the inmate was represented by lawyers from Sullivan and Cromwell who left the firm without telling their client. When the clerk of the court mailed the decision denying the motion the notice was returned to the clerk's office unopened and the time to appeal subsequently expired. 


By a vote of 7-2 Justice Ginsberg wrote that “In these circumstances, no just system would lay the default at Maples’s death-cell door.” 
The error was so compelling that even Judge Alito concurred in the result. Of course Judges Thomas and Scalia (despite his unearned reputation as a friend of defendants) dissented in the decision. 
The NY TImes article is here.  The decision in Maples v. Thomas is here. 




See You In Court. 



Sunday, January 15, 2012

JUDGE JULIO JIMENEZ

Update: Sorry we did not get this up sooner. There will be a memorial service for Judge Jimenez on Wednesday January 18, 2012 at 12:30 PM at Church of the Little Flower,  2711 Indian Mound Trail, Coral Gables, Fl. Mass will be celebrated. 




He was Sy Gaer's law partner, which means he had a connection to the roots of the REGJB. He was a defense attorney, a trial lawyer, a judge, and an all around good guy, and we are sad to report that Julio Jimenez passed away on Sunday. Many of you know he was sick, battling liver cancer. However, Julio Jimenez lived long enough to swear his son in as a member of the Florida Bar this past Friday. There's not much we can add to something as poignant as that. 


He will be missed. 


Here's a fun post we did on a Judge Jimenez battle with the SAO over PTI. 


UPDATE:
Judge Julio Jimenez's Memorial Service will be on Tuesday, January 17, 2012, from 5 pm to 10 pm at Maspons funeral home at 3500 SW 8 Street.


Here is the Herald's obit. 

Saturday, January 14, 2012

HUNGER

Against our better judgment, after the two month fiasco of the Game Of Thrones series, we started Hunger Games.  And we have to admit it's pretty darn good. 


Anybody know why the JAA Broward blog has not been posting? When something like that happens in Broward, we suspect nefarious means afoot.


What makes DOM go "yikes!" ?. When a member of the US Attorney in Miami's staff is indicted for trafficking in oxycodone.  His blog has all the yikey details.


Coach Jeff Fisher shined the Fins for St. Louis of all places.


DRUG COURT:
Several months ago we published the announcement that Judge White-Labora would be leaving drug court in the new year. What we neglected to publish was the change in that decision. We are happy to let everyone know that the powers that be changed their minds and Judge White-Labora will be in drug court through the end of 2012. And if someone could explain the reason why she has not yet been elevated to circuit court, we'd like to know. Governor Scott has actually done a pretty good job with his appointments, but the failure to elevate Judge White-Labora is one mistake he needs to fix.


Monday is a holiday.
See you Tuesday.

Friday, January 13, 2012

THE GATES ARE OPEN

Outgoing Mississippi Governor and putative candidiate for president Haley Barbour opened the gates of the prisons in Mississippi and pardoned a bunch of people. Barbour granted conditional and unconditional pardons. 


Rumpole says: Our number one complaint against the american justice system is the length of sentences. Our second complaint is the utter lack of hope any inmate has for a reduction of his/her sentence. Rehabilitation for those serving ten or twenty years or beyond is meaningless to an inmate who has little incentive to anything. The liberal use of pardons for those who earn it is a very good start.


Just before the new year the Becker-Posner blog tackled the question of whether America imprisons too many of its citizens. It's worth a read.  From Judge Posner's post:
 Some statistics: the incarceration rate had been 118 per 100,000 in 1950, and actually fell in 1972 to 93 per 100,00. By 2000 it had reached 469 and only since the advent of the economic crisis has it begun to decline as states try to reduce expenditures. Between 1950 and 2000 the white imprisonment rate increased by 184 percent and the black imprisonment rate by 355 percent; today 40 percent of prison and jail inmates are black, although blacks are only 13 percent of the overall population. Even though the U.S. crime rate fell by a third in the 1990s (and by two-thirds in many large cities)— the murder rate by more than 40 percent—the inmate population continued growing during this period, an increase that cannot be explained by population growth, since the population grew by much less than a third in the 1990s.


TRISCADECAPHOBIA


Today is Friday the 13th. Did you know the original plans for the REGIB included thirteen floors? *
The number 13 is the sixth prime number. It is also a fibonacci number.  Thirteen turns are required to make a hangman's noose. And there were thirteen disciples at the last supper. Dan Marino wore number thirteen as did Shaq in the 1996 olympics. 


Roy Black on the use of snitches and the federal cooperation scheme. 




Anybody in trial on anything good?

Cold front coming. It's already hit Buffalo, Pittsburgh and Philly. Meanwhile its a toasty sixty in Denver and much of the midwest. 

See You In Court. 

*Not really, but it sounds interesting.

Tuesday, January 10, 2012

MITT IS IT v 2.0

Here's a headline you won't see in November: "Mitt Wins!"


Romney will win the New Hampshire primary tonight. 
Ron Paul is second, with Henry Cabot Lodge, Harold Stassen and others bringing up the rear. 


JUVENILE JUSTICE? 


In answer to a statement in the comments on the previous post that  no juvenile in the US had ever been executed for a crime, we did a quick search and were astounded to see that NINE...count em...NINE juveniles were executed from 2000 to 2005 when the supreme court (Motto: "Better late than never") put an end to the madness.  But up until 2005 the US proudly stood with Iran, North Korea and China as the only countries who taught those rascally kids a lesson they would never forget. 


NEW BLOGGER
Keep your eyes open for our new guest blogger who, like El Capitan, has been awarded unfettered blogging privileges. Membership has its rewards. 


PRIVACY


There was some chatter across the legal blogs about Mitt Romney indirectly attacking the decision in Griswold v. Connecticut which is credited with establishing  the "right to privacy." Griswold was about the ability to buy condoms. But in a much larger sense Griswold more than any other case highlights the problems with constitutional analysis and illustrates why objectivism as applied to constitutional law is an excellent lens. 


Justice Douglas found a right to privacy in emanations from a  "penumbra"  from the bill of rights. A penumbra is  a region where some or all of the light is obscured. When applied to constitutional analysis, finding a right emanating from  a penumbra is another way of a judge saying "the facts of this case disturb me enough to invent something to fix the result and skewer the decision to a result that I personally want regardless of what the law is." 


There is no right to privacy in the constitution. If you ask us personally if there should be, the answer would be an unequivocal "yes!". And we approve of the "result" in Griswold. But the the method to reach that result is dangerous. 


No other right has ever been found lurking in the elusive penumbra since Justice Douglas's remarkable discovery. But what if Thomas and Roberts and Scalia and Alito can convince one of their brethren that they have "discovered" the right of a fetus not to be aborted lurking within a penumbra of the constitution?  How about if, after careful scrutiny, they found that right just out of common eyesight and lurking within the penumbra of the right to "life, liberty and the pursuit of happiness"?  How wonderful would the analysis of Griswold look to those who otherwise celebrate the discovery of the right to privacy? 


Our point is that when you reach the upper most echelon of constitutional analysis, the method of arriving at the result (the philosophy if you will) is more important than the result itself.


See You In Court. 

Sunday, January 08, 2012

ANOTHER DNA EXONERATION

Another Illinois inmate freed by DNA.


The Lake County state’s attorney, Michael Waller, in a statement defended his office’s prosecution of Mr. Rivera, whose case was featured in an article in The New York Times Magazine. “I am mindful that for Mr. Rivera and some others, this decision will be viewed as too late in coming,” Mr. Waller said. Though there was no physical evidence linking Mr. Rivera to the crime, he was convicted of raping and murdering the baby sitter, Holly Staker, based largely on his confession. In 2005, DNA testing determined that Mr. Rivera was not the source of semen found inside Holly, and he was awarded a new trial, his third.

Rumpole says: But innocent people don't confess, right?

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.








Tuesday, January 03, 2012

Charlie Johnson has an opponent

THE CAPTAIN REPORTS:

BREAKING NEWS .... IT'S BACHMAN ..... NOT

REAL BREAKING NEWS - CHARLIE JOHNSON HAS AN OPPONENT ......

COUNTY COURT UPDATE:

Group 39:

Charles "Charlie" Kenneth Johnson (Incumbent)
vs.
Enrique Lazaro Yabor

This afternoon, attorney Enrique "Rick" Yabor filed to run against Judge Johnson. Mr. Yabor has been an attorney for 12 years. According to his website, he was an ASA and tried over 200 trials. He specializes in: Business Law & Litigation, Real Estate Litigation, Construction Contracts and Litigation, Bankruptcy, Family Law, Employment Litigation, and White-Collar Crimes. (www.yaborlaw.com ).

Judge Johnson was appointed to the bench as one of Governor Charlie Crist's last appointments in December of 2010 after serving as an ASA for 22 years. Judge Johnson has smacked down $140k of his own money as a loan to the campaign.

Group 27:

Ivonne Cuesta
vs.
Jacci Suzan Seskin

In late December, ASA Jacci Seskin filed to run against APD Ivonne Cuesta. Mrs. Seskin had a previous career as a RN for 25 years before attending law school. She has been an attorney for eight years. She apparently worked at both the Public Defender's Office and now, the State Attorney's Office. Mrs. Seskin, who is married to a doctor, plucked down $150k of her own money as a loan to the campaign.

Ms. Cuesta has only $7,000 in her bank account (of which $5,200 is a loan to her campaign).

Group 20

Michelle Alvarez Barakat
vs.
Fleur Jeannine Lobree
vs.
William Pena Wells

I have previously posted on this race.

Group 28

Tanya Brinkley
vs.
Nobody

Ms. Brinkley was up against attorney John Rodriguez until he switched to Group 33.

Group 33

John Rodriguez
vs.
Nobody

Filing deadline still four months away. No changes in Circuit Court races.


CAPTAIN OUT ..............

Monday, January 02, 2012

WELCOME BACK

The holidays are officially over (wait- we have a three day weekend coming up for MLK day in two weeks) and it's time to get back to work.

COLD SNAP
The low Tuesday morning could be in the high 40's as temperatures plunge Monday night with the wind whipping the wind chill (technically defined as something that happens to people stupid enough to live in the North East US) making it feel like 29-34 degrees.

And wait! Tuesday night will be colder!

Rumpole tip: Go to your AC and flip the little switch from "cool" to "heat" and set the temp to 70. Brew a hot cuppa and relax.

Miami! See it like a native.

IOWA RESULTS
Avoid the rush Monday night, we have the Republican Caucus (technically defined as "a meeting of a bunch of farmers and their families that are not representative of the nation and yet have undue influence on who we elect as a president" ) results now:

Mitt is it!
Ron Paul;
Rick Santorum;
Newt;
Rick Perry
Bachman Turner Overdrive/under achiever.

The Judges rotation takes effect next week. Can't tell your player without a scorecard and that's what we are, your unofficial REGJB scorecard.

Let us be the last to wish you a happy new year.

See You In Court.