Wednesday, May 01, 2013

TRIAL BY JURY

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...
Sixth Amendment to the Constitution. 

Proposed amendment: "Except in the Bronx, New York."

The NY Times continues it profile of the broken justice system in the Bronx: Justice Denied. 

The article follows the experience of one Iraq war veteran who was arrested fro possession of marijuana who was innocent and did not want to accept a plea: 
The whole system had made it clear, he said, that if he pleaded guilty, he would not have to keep coming to court. But he had turned down a string of ever-sweeter plea offers over 15 months after his arrest in August 2011. “I said: ‘No. Why would I do that? I am not guilty.’ ...

In lower-level cases...  defendants who have been found guilty of nothing miss jobs and school to return repeatedly to court until they give up and plead guilty to something. The ordeal of going to court has become the new price of being arrested — even more so than the minor sanctions that usually come with low-level charges.
“The process is the punishment”
In Miami what we say is "You can beat the rap but you cannot beat the ride." 

And therein lies the rub. 

The justice system everywhere is evolving into a endurance match designed to break down the accused into an accepting a plea from a court system not funded to provide the accused his or her day in court. 

A side effect of this, at least in Miami, is the trial tax.  Should an accused be so imprudent as to file a motion or request a jury trial the plea offer goes through the roof. 

Rumpole practice tip #19: Be aware of Wilson v. State, 845 So.2d 142 (Fla. 2003):
However, just as a trial judge cannot punish a defendant for exercising his or her appellate rights, see Pearce, 395 U.S. at 723-24, 89 S.Ct. 2072, “[t]he law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional. ..
However, just as a trial judge cannot punish a defendant for exercising his or her appellate rights, see Pearce, 395 U.S. at 723-24, 89 S.Ct. 2072, “[t]he law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional. 

We save our solutions for another day, but this much is clear:
1) In Miami, and probably in most other state courts, the court system is underfunded. 
2) This in turn imposes a non-legal systemic burden on defendants that want to fight their charges, including parking costs,  interminable long lines to enter the courthouse,  excessive delays and new court hearings. 
3) The repetitive process requires  the defendant to endure the entire process again and again, wearing down their resistance, and  resulting in lost wages that most defendants cannot afford, for those lucky enough to have a job. 
4) There is a direct relationship between economic standing and the effects of 1-3. The wealthier the defendant, the more likely they can hire counsel to help them navigate the justice system and alleviate the delays and burdens. 

The end result: more poor people end up pleading to misdemeanors and less serious felonies. 

One final thought we will expound upon at another time: while  the system cheapens the value of any conviction because most convictions represent a negotiation by a defendant who can ill afford the costs and delays, the system does not devalue that conviction in the context of a prior record. 

What that means in English is that come sentencing, a judge will not look at a string of convictions for drug possession and theft and resisting with or without violence and recognize it for anything other than a pattern of illegal conduct. There is no recognition that a broken system rigged against the defendant, and not facts and real criminal conduct produced those convictions. 

Coming soon: the fix.

See You In Court. 

46 comments:

Anonymous said...

Don't all you supposed "seasoned" trial lawyers know that Judges aren't there to try cases? They are there to clear calendars. How many times have you talked a client into taking a plea because A) he can't pay for a trial B) Judge is gonna hammer him/her if they insist on their constitutional right C) he/she is guilty or D) you just can't be bothered because you have Shumie time scheduled?

Rumpole said...

If you're looking for your asinine comment about population control, it's been tried before. Germany - 1930-1944;

Moron.

Anonymous said...

I don't believe self control was tried back in that era. There's a chasm of a difference between what you describe and what was suggested. Which is taking personal responsibility, changing a culture from within, not for forced change upon a race by an outside source. Sorry chap. Not even worthy of a comparison.

Anonymous said...

Sorry folks. Still going to certify no jail/withhold to clear my misdmeanor calendar. If the public defendanrs did not use the jury system down and attempt to slow down the courts, it might not be necessary. That is why PTI is available.

Anonymous said...

The Cookie Monster won't be bullied into a guilty plea:

http://www.miamiherald.com/2013/05/02/3376185/nyc-man-who-dressed-as-cookie.html

Anonymous said...

as a PD, I often have clients who insist on going to trial because they insist they are innocent or because they just wont take the plea. At least in Florida, we have the speedy trial rule. So, you file a speedy demand, the judge starts their pontificating about how they are going to slam him, the state doesn't have their shit together or the client freaks out, and viola, takes a plea anyway. Very few of them actually go through that hoopla and actually put 6 in the box.

Anonymous said...

I find smart men so sexy. Rumpole you drive me crazy.

A sexy fan.

Secret Judge said...

Mr. Rumphole, this is one of your better posts in recent memory. The problem you describe is a product of many factors, including urban decay with no immediate solution likely to emerge. Certainly a parade of young inexperienced judges, with no jury experience, as we presently have here in Dade, does not bode well for the rights of the accused. This is why it is so important that private experienced attorneys with considerable criminal defense in their past offer themselves to be judges.

Anonymous said...

Cueto routinely initated plea negotiations, threatened defendants about the time he would give them, tell them how much time he gave the last defendant who went to trial, ask you your age, tell you "Probability is you'll die in prison", take the stack of papers on his bench desk prop them vertically lay his pen down and say, "But hey, we have no axe to grind here, it's totally up to you".

Anonymous said...

9:11,

It's "Voila" not "Viola".

Anonymous said...

Am I the only one who finds Dava Tunis to be a totally rude jerk?

Am I the only one she cuts off mid sentence?

Am I the only one she says, "I don't mean to be rude but...?"

Am I the only one she treats like dog shit?

Could it be me? I doubt it.

Anonymous said...

I truly believe if George Mason could observe the current state of the judiciary he would say it's being usurped. Twelve (12) jurors should be on (all) felony cases.

APD, ret. said...

Let's be clear, there is no meaning behind the word "justice" in the criminal justice system. Judges want cases closed. If that means a plea at arraignment, they don't care. Never mind the ethical standards for a defense attorney are to first investigate the case and the consequences and then discuss the possibilities with the client. Judges have no problem pushing defense attorneys to practice unethically, and to an extent, the judges are acting unethical as well. Forget the prosecutors, who wouldn't know or respect ethical duties to a client. If there is no plea offer at arraignment, the judge will order the client to return in 10 days to hear a plea offer from the State. To do what? Drag the client back to court, taking off from work or paying for child care while paying for transportation and parking. The State makes an offer, and the case gets set off for trial (because again, while we are 10 days past arraignment, no investigation has been able to be completed). Then of course comes soundings where judges require the presence of the client. Sometimes private attorneys can get their clients' presence waived, however rarely if ever can a PD. So time and time again the indigent client must take off from work or pay for child care, and then pay for transportation and parking to sit in a courtroom for 3 hours (because the judges will take the private attorney cases out of turn) to hear that one or both sides are not ready and a plea offer they may not be willing to take. In other instances judges will continually set cases for plea every 10 days until the State is able to come up with an offer. Same problems as before: taking off from work or paying for child care, paying for transportation and parking, etc.

Nothing in the real world, day to day life of the criminal justice system is designed for justice and "seek[ing] the truth." Judges just don't care. While defense attorneys are able to fight back, ultimately the client makes the final decision. Attrition is the true meaning of the criminal justice system.

Anonymous said...

Justice Canady is at his breathless best today in dissent in Smallwood.

Anonymous said...

Rumpole needs to run for like Chief Judge, Mayor, and governor all in one. I trust him to fix our problems.

Anonymous said...

To: 10:52 am: Dava Tunis does that to everyone. Don't feel special. You should see how she handles trials.

You have to wonder why nobody runs against her.

Anonymous said...

Rumpole, have you ever cited Wilson v. State against a judge? Or ever even heard it cited?

Great to know its out there, but does anyone use it? Ever?

Anonymous said...

Dava Tunis Rocks! Sorry if she specializes in cutting through the normal bologna. I much prefer a judge who cuts through the meaningless stuff and focuses on what is important. I've never had her cut a client or me off on an important issue that actually matters. Relative to some of her colleagues, she is a dream come true.

CAPTAIN said...

Reprinted by request, with permission, from The Captain.



THE CAPTAIN REPORTS:

SO, YOU WANT TO BE A CIRCUIT COURT JUDGE .....

The JNC has met and voted to send up five names to Governor Scott for appointment to the open seat of Judge Joel Brown. Your next Circuit Court Judge will likely come from the list of:

Jason Bloch
Judge Donald J. Cannava
Judge Wendell M. Graham
Ayana Harris
Robert Luck

If the Governor chooses one of the two County Court Judges, then he will get a 2for. We should have Governor Scott's answer no later than June 29th.

These five were interviewed and did not make the final cut:

Michelle A. Delancy
Alan Sackrin
Steven Reininger
Sandra Miller-Batiste
Thomas Cobitz

Good luck to all the nominees.

Captain Out .....
captain4justice@gmail.com

Anonymous said...


Could not agree with you more, Secret Judge. The urban decay, combined with several other factors contribute to the problem. The question is, where do you throw the money in order to come up with a solution. Hire more judges, and more PDs, and more ASAs.? Or attack the problem from the other end, the front end.

Why not throw the money into what is causing our criminal justice system to be busting at the seems; too many defendants. Coming from too many urban decaying neighborhoods, filled with too many single moms, teenage moms, having babies, who have no male role model around, other than Lebron James or RG III. Attack the root of the problem, and you will drastically reduce your caseload. That's one way too attack the problem.

Rumpole said...

Carry a copy of Wilson in your brief case and when the state revokes a plea offer because you want a trial pull it out start reading from it and then say the following:

"the state cannot possibly want to punish my client for exercising his constituuonal rights. So could the court please inquire as to what just happened within the last minute to get them to say that all of the sudden after trial they are seeking the maximum when 60 seconds ago probation was fine? Because whatever happened other than us electing to exercise our 6th amendment right to trial, I missed it. "

Then sit back and watch.

Anonymous said...

http://www.sun-sentinel.com/news/local/crime/fl-lawyer-fraud-seminole-tribe-20130502,0,7588391.story

Anonymous said...

I'm no Knicks fan but I do respect Carmello Anthony as the best pure scorer in the NBA and I obviously respect him a lot more than the chippy punks on the Boston Celtics who tried to goad him into a fight after last night's game. Whatever class and sportsmanship the Celtics had disappeared when Ray Allen came down to Miami.

Anyway, I predict that Carmello is going to do to the Celtics tomorrow night what Lebron did to them last year, i.e., humiliate them on their sacred home court. I will be very surprised if Carmello doesn't score at least 50 points and wouldn't be surprised if he stays into the game till the very end to see if he can put up 60 or 70 points and, in doing so, put a stake through this Celtics team and send "Faces of Death" Kevin Garnett whimpering off into retirement.

David S Markus said...



After reading your excellent post on the trial tax, I feel compelled to share a recent experience I had before Judge Newman.

I have practiced in the REGB for many years, but rarely handle county court cases. I know Judge Newman professionally, but we are not friends and I have never tried a case in front of him.

My client was charged with leaving the scene of an accident. He was waiting in line to drop off his kid at school and tapped the car in front of him, leaving a miniscule scratch. He felt there was no "accident" and left. My client felt as a matter of principle that he had not committed a crime and insisted on a trial. Three baby ASAs prosecuted the case with a zeal that should have been saved for a PRRP. We went bench and my client testified and contradicted some of the testimony of the victim and the cop. At the end of the case, the judge called the lawyers to the bench and strongly hinted that the state should offer PTD if the client apologized. The "victim" was satisfied with this result. She told the judge that she did not seek restitution, and simply wanted my client to acknowledge that he was wrong. The ASAs were rude to the judge and refused. The judge found my client guilty, but spent about ten minutes explaining his thought process and why he believed one version over the other. His reasons were cogent and it was obvious that he listened carefully to all of the witnesses.

At this point, I began thinking about the trial tax and what this bench trial was going to cost my client. Judge Newman withheld adjudication, imposed no other sentence, and waived court costs. My client and I left court satisfied that we had gotten a fair trial by a judge who did not punish us for going to trial.

As we discuss the trial tax, which, unfortunately, is the norm in the building, perhaps we should also recognize those judges who have not imposed a trial tax when they could have.

Others may have had different experiences with Judge Newman, but after this trial, for this client, he rose above the usual crap we deal with on a daily basis and did the right thing.

Anonymous said...

Touching .

You should have picked a jury.

Anonymous said...

No dude

Doing the right thing was finding your client not guilty

You're in county court a lot btw

Anonymous said...

David S Markus: in case you didn't get the message, baby asa's are supposed to prosecute with zeal. they don't handle prrp cases for a reason - they are babies. but they learn. what they can learn from your post is that you are a bitter man who doesn't recognize that we all had to start our careers somewhere.

Phil R said...

As usual, the comments on the blog are anonymous, mean, and not very well thought out. David Markus is 100% correct and I have had similar experiences with Judge Newman. Some of his practices running a calendar may be irritating, but I will take that in a second because Judge Newman has consistently shown himself to be a judge who issues sentences in a thoughtful manner without regard to whether a client elected a trial.
I have one instance that comes to mind about ten years ago: I walked into Judge Newman's court to cover something for Jackie and there was one elderly man sitting by himself and the air in the court room was tense- I could tell something bad had just taken place. A PD explained to me that the man was unrepresented on an LSA and had turned down a reasonable plea offer and there had been some harsh words between him and the Judge. A trial was about to begin. I asked Judge Newman if I could help and he asked me to speak with the man.

It turns out that the man had spent a decade in a prison in Cuba as a political prisoner. He had admitted that he had left the scene of a fender bender and was happy to make restitution but he could not stomach a plea colloquy in which he admitted to committing a crime. Like so many other problems in our lives, this was a miscommunication.

I approached Judge Newman with the ASAs and explained the problem sidebar. A look of concern came over Judge Newman's face as he realized the problem. He then spent the next half an hour speaking with the elderly man about Cuba, the U.S and as they talked every now and then the Judge sort of threw in a bit of the plea colloquy. When it was all over the case was closed for court costs and restitution, the man could not have been happier that a Judge took the time to talk to him about his life and experiences in Cuba.

David was right. Judge Newman is the kind of Judge who works extra hard to treat people fairly.

Anonymous said...

I am SHOCKED, Shocked - Judges Max out Defendants that lose at trial instead of a proportional punishment for a Guilty Verdict. Shocking, next thing we will discover gambling in the back room at Rick's Café American.
DS

Anonymous said...

Amen Phil. Well said.

Anonymous said...

I too have seen Judge Newman do the right thing a few times but, I too am tired of him asking like a petulant child.

After a guilty verdict, he doesn't bang the client but, does usually give some jail sentence.

I think Ed should be in branch court.

Tunis should be in private practice somewhere far away.

Anonymous said...

With all due respect to David and Phil, your experiences before Newman are the exception and not the rule.

Anonymous said...

Phil posting on his own blog? Kind of a Clark Kent/Superman thing going on...

Anonymous said...

Phil,

The last time you can recall someone being treated fairly is ten years ago. God help us.

Anonymous said...

If you all would file JQC complaints then maybe the bs would stop.

Anonymous said...

I think a fair reading of Phil's comment is that he was recounting one memorable instance with Judge Newman not that that was the only fair instance in the last decade.

Anonymous said...

Seriously,

We have a sleu of inexperienced judges with no jury experience and an overwhelming amount of prosecutors from the bench. Besides whinning what action is taken; we act as if this is La cosa nostra.

Anonymous said...

Didnt there used to be a judge with a cheese last name? swiss or cheddar or muenster or brie or something?

Old Guy said...

Xerxes, that old greek guy who ran most of the court reporters in the 1970's and 1980's and then sold out- remember him? He had his beautiful Italian wife Rosanella and their hot daughter Ophelia?

My friend the old gunner-Steve Gunderson- found him running a bed and breakfast on the tiny Greek island of Kasos. The gunner said he recognized him immediately and they sat up all night drinking Ouzo and swapping war stories about Dubitsky and Solomon and Morphonois, and Snyder and Scott.

Anyway, getting his email address so others who remember Xerxes can drop him a line.

Anonymous said...

Guy looked like Zorba the Greek and ran a tight ship. Almost every transcript ordered was ready in 24 hours, but g-d save you if he saw you staring at his daughter. I heard he beat a guy in a bar for 20 minutes when the guy made one comment about Ophelia- and it turns out the guy was an NFL lineman whose team was here to play the Dolphins. He was a tough old bird and not surprised he is still around.

Anonymous said...

Kiera Wilmot

There are a lot of reasons Kiera Wilmot's story has exploded online this week. First, there's the sheer weirdness of a 16-year-old getting in huge trouble for a science experiment gone wrong. Then there's the racial aspect: A black girl -- exactly the type of kid underrepresented in the scientific studies -- getting heavily punished for her curiosity. But craziest of all, most of the web seems to agree, are the legal charges she's facing: two felonies for, in essence, a project that didn't hurt anyone. The potential charges are even more galling considering that same prosecutor who gave police the OK to arrest Wilmot elected not to charge a 13-year-old just three weeks earlier for fatally shooting his younger brother.

See also: - Florida Teen Girl Charged With Felony After Science Experiment Goes Bad

A police report obtained by Riptide earlier this week shows that after Wilmot's assistant principal caught her after mixing toilet bowl cleaner and aluminum foil in a plastic bottle -- in what Wilmot called a "science fair experiment" -- he called the police to school.

An officer, after hearing the facts, in turn called Polk County Assistant State Attorney Tammy Glotfelty. "I advised ASA Glotfelty of the circumstances of the case, and she advised the officer to file the charges of possessing or discharging weapons or firearms at school... and making, possessing, throwing, projecting, placing, or discharging any destructive device."

What's not clear is whether prosecutors will follow through with the charges. Wilmot is a minor, so the charges don't show up in an online records search.

Riptide contacted the Polk County State Attorney's Office. A woman named Donna, who declined to give her last name, said, "Our only comment is we're still investigating and can't say anything about it."

As several online commenters have noted, the situation is in stark contrast to Glofelty's handling of another emotionally charged case this year.

A 13-year-old from Bartow named Taylor Richardson shot and killed his 10-year-old brother, Skylar, with a BB gun March 13. A month later, Glotfelty elected not to press criminal charges. Here's what she told the Lakeland Ledger:

"Our office has considered this case, keeping in mind that (Taylor) is 13 years of age and is a student at Roosevelt Academy... After a thorough review of the facts, available to our office at this time, it is our opinion that this case can only be seen as a tragic accident."

Probably a wise choice. Now, will Glotfelty reach the same conclusion about Wilmot?

Anonymous said...

335 on a Friday. Can i get a Shumie?

There was a judge named lindburger I believe

Anonymous said...

One would hope Rumpole that the prosecutor you hand Wilson v. State will read it through and note on page 150 where it says that "a prosecutor may offer to recommend a more lenient sentence or reduction in charges during the plea negotiation process, and that a prosecutor may threaten a defendant with increased charges if he or she does not enter a plea"citing to Alabama v. Smith.

Scott Saul said...

David Markus tells a nice story, offers sincerity, pays a little complement and he get's insulted?!

All of you anonymous backstabbers are such losers...

especially you 11:29 p.m.

You know why you posted that at 11:29 p.m. ?, Because you have nothing going on with your life, you are sitting on the toilet peeing (you are dickless, you wuss) and typing on your Ipad.

6:08 am, your comment was the biggest loser comment on the year so far

All you weasels just love to anonymously criticize and backstab, y'all need to get "some", clear out your pipes and get your head on straight.

Rumpole said...

If you choose to have issue with what someone says, you cannot attack them on the way they look.

Anonymous said...

No one wrote again about the 12 jurors exception that took place on the Kaufmam trial. I personally think that every defendant facing a life sentence should get trial by 12 juros. I am your non atty. reader of this post. I would like to read more about this issue . Any opinions out there?