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

Wednesday, June 12, 2013

MILT HIRSCH, LESLIE ROTHENBERG, AND THE TAPES

Lesson one of legal blogging in Miami: Put Milt Hirsch in a post and the hits on the blog go through the roof.
 
Last we left Milt Hirsch, Miami's own "Bard of the Bench" he  was safely ensconced in his robes. There was just the nagging issue of his former client Sean Casey. To make a very long story short, Casey was charged with DUI Manslaughter. Milt did a spectacular job and got the blood tests suppressed. The 3rd DCA (in what should have been recognized as a precursor of things to come) reversed the trial judge's order. The case was returned for trial and Mr. Casey fled to Chile where he resided for two years until he was apprehended. Upon return to Miami, Casey, with Hirsch as his counsel, entered a plea and was sentenced to prison.
 
Casey filed a post conviction motion to set aside his plea. His main contention was that Hirsch and his therapist (recommended by Hirsch- Dr. Michael Rappaport) advised him to flee once the 3rd DCA reversed the suppression of evidence. Prior to fleeing, Casey and his mother surreptitiously taped Hirsch and Rappaport. "The Hirsch Tapes" as they came to be known, ended up in the possession of the SAO (motto: "The tapes are none of your ^%@!$!$~! business"). David S Markus (NOT the blogger) represented Casey on the motion. The court, at the request of the SAO, SEALED the tapes. Markus didn't get access to the tapes, and the tapes were not admitted into evidence. The court denied the motion for relief. The 3rd DCA, without benefit of the tapes, affirmed the denial. Casey filed a pro se motion alleging  fraud. The State filed a motion to seal. Enter Bruce Brugmann, a San Francisco owner of the San Francisco Guardian. He filed a motion to intervene and oppose the motion to seal. The court denied the motion. Brugmann appealed: From Judge Rothenberg's dissent:

On September 17, 2009, Brugmann filed the instant petition for review of the trial court’s order sealing the judicial record. On April 21, 2010, this Court issued an order denying the petition without a written opinion, and on May 6, 2010, Brugmann filed a motion for rehearing, rehearing en banc, and for a written
opinion. The motion for rehearing was granted, and on April 27, 2012, the panel issued a written opinion denying Brugmann’s petition for review of the order sealing the judicial records. Brugmann v. State, 37 Fla. L. Weekly D1041 (Fla. 3d
DCA Apr. 27, 2012). Upon issuance of the written opinion, Brugmann filed a subsequent motion for rehearing en banc. After review of the motion, this Court again granted rehearing; withdrew the April 27, 2012, panel opinion; and a majority of the voting members of this Court denied Brugmann’s petition without
prejudice to seek relief by other means.

In English: The 3rd DCA will not issue any reason for denying Brugmann's petition.

Enter Judge Leslie Rothenberg, friend of the poor, the weak, the oppressed, and champion of open government. She filed a very lengthy (anything over ten pages and we start skimming) dissent, strongly arguing for the release of the tapes. Judges Salter and Ivan Fernandez concurred with Judge Rothenberg's dissent.

What we have here folks, is a very divided 3rd DCA that cannot agree on much in this case. And ain't that fun?

From the peroration of the dissent:

Some of the evidence the successor judge failed to consider in evaluating whether to seal the Hirsch tape is: (1) whether the tape demonstrates that Hirsch gave perjured testimony at the evidentiary hearing; and (2) whether the tape, when
considered with all of the other evidence, supports Casey’s testimony that Hirsch encouraged him to flee the court’s jurisdiction, thereby committing a fraud upon the court at the evidentiary hearing…

Additionally, when ruling on Casey’s motion for relief of judgment, the trial court should have reviewed the tapes to determine if Hirsch and/or Rappaport counseled Casey to commit a crime; Hirsch and/or Rappaport gave perjured testimony; and Hirsch, Rappaport, or the State committed a fraud upon the Court
by falsely representing what was said on the tapes.

Rumpole says: WOW. It's not often we get to use "peroration".
Disclosure: We like Milt Hirsch. And we do not believe for one moment he committed a crime or counseled his client to flee. His reputation earned over many decades as a pre-eminent attorney entitles him to that presumption. And yet....

There is something about this we cannot just abide. Why not release the tapes? Especially if there isn't anything to hide. There is a young man in prison who claims the tapes contain evidence that support his legal arguments and would thus establish a very serious fraud upon the court. Why the rush to seal them? Why won't the circuit court judges hearing his motion listen to them? It is all very...distasteful. One could imagine, in other circumstances, Milt Hirsch as counsel for the accused, championing the release of the tapes and excoriating the government for secrecy, much like Judge Rothenberg has done. This case is bizarre. Down is up. Up is down. Milt Hirsch is on the side of tapes being sealed and kept from a defendant and Judge Rothenberg (to her everlasting credit) is championing giving the defendant a fair hearing and access to evidence.

Very strange.

38 comments:

George Frobisher said...

But that I am forbid To tell the secrets of my prison house, I could a tale unfold whose lightest word Would harrow up thy soul, freeze thy young blood, Make thy two eyes like stars start from their spheres, Thy knotted and combined locks to part, And each particular hair to stand on end Like quills upon the fretful porpentine.

Anonymous said...

Add the following to the wierdness--the state moved to seal the tapes,and Judge Rothenberg is thus arguing against the state attorneys office(surely a first).

Anonymous said...

Why suppress the tapes, Miltie, unless they prove you counseled Casey to flee??? Miltie is a liar, liar pants on fire. This is not over.

Richard Milhous said...

Jahezeus and dip me in egg batter and roll me in flour! Milt- you're a student of history. Didn't you learn from me? YOU ALWAYS BURN THE TAPES.

If I had burned the tapes, I would have served a full term. No resignation, no Ford in 74. No Ford in 74, no Carter in 76. No Carter in 76, no Reagan in 80. No Reagan in 80, no Bush in 88 and 2000 and 2008, Which means no Iraq war and no Afghanistan war and think about all that happened because I didn't burn the damn tapes. Milt Milt Milt. You screwed the pooch mi amigo.

not a fan of the USGA said...



Speaking of Milt, what say you Rumpole on the absolute and complete stubbornness of the USGA and their stance on no lift, clean, and replace this week at the US Open.

Here is what they said:

But no matter how poor the weather gets, or how difficult the course conditions become, the United States Golf Association will stick to its long-time policy of not allowing preferred lies.

The Rules of Golf allow for such exceptions, and it is a policy put in place often on the PGA Tour. If weather conditions dictate, players are allowed to "lift, clean and place'' their ball as long as it is in the fairway.

Not at the U.S. Open.

And the weather at Marion is expected to be practicably unplayable. High winds, hail, and rain all expected tomorrow and for much of the weekend.

heat fan said...



I have confidence in the Heat and still believe they will win the championship.

Two days ago they were the talk of the town. They had just wiped up the floor with the Spurs and the Spurs were crawling back to San Antonio with their tail between their legs.

So, the Spurs had a great shooting night last night.

In the first two games, the Heat had tied or won seven out of eight quarters played. And the score was 44-44 with seconds to play in the first half last night.

They will rebound in game four and take two out of three after that.

And if they don't, I am still a fan and will be there to root them on, win or lose.

Heat Fan

Anonymous said...

Milt's ethics and qualifications to be a judge are suspect, to say the least. I would trust the average used car salesman more than him. Release the tapes!

Anonymous said...

why does state want them sealed?

Anonymous said...

I am not at all surprised by Rothenberg's position. She ALWAYS tries to do what she thinks is right. You may disagree with her philosophical positions, but I'd rather have a judge who works hard and does what he or she believes in than some jackass who doesn't understand the importance of what he or she is doing or the impact his or her decisions make (ie. no more judges who worry more about their tennis games, afternoon cocktails, or nail appointments than the people/cases in front of them).

BTDT

Anonymous said...

Oh yeah, a criminal looking for a way out and blaming his lawyer. holy shit, stop the presses! ive never heard of that. jailhouse bullshit. come on, his mommy with him every step of way? co dependent anyone? these people are cuckoo

Billy J said...

Milt. bubbula, repeat after me: "Ah did not advise that man to flee."

When they catch ya, jus apologize, retire, and then have your wife run for senator. It worked for me bubby.

Anonymous said...

Speaking of the Third DCA Congrats to Judge Frank A. Shepard. Judge Shepard is taking over as Chief Judge of the Third DCA. Prior to being elevated to the Third DCA Judge Shepard was senior legal counsel for Pacific Legal Foundation. Pacific Legal Foundation litigates conservative causes such as welfare reform, private property rights, and advocates for small government.

Anonymous said...

Why would you ever print: Anonymous said...
Milt's ethics and qualifications to be a judge are suspect, to say the least. I would trust the average used car salesman more than him. Release the tapes!

Wednesday, June 12, 2013 7:13:00 PM

If the guy does not have the guts to identify himself, I think you should think twice about printing that type of thing. Would you have printed it irrespective of who the judge was?

Anonymous said...

Waking up to a good Milt post is like waking up to a delicious cafe latte that the barristta from starbucks that you picked up and took home last night made for you in the morning. A delicious, yummy, satisfying surprise.

Thanks for starting my day out right Rump.

Rumpole said...

5:48 am. I am walking a fine line here. This issue is a story and people should comment within some sort of boundaries that I have to enforce. I will do my best. I do not agree with the comment, but it really doesn't violate any of the guidelines I have set. So yes, if someone wrote that about another judge, I would allow it to be posted. Nothing about this topic is easy or fun for me, especially considering that I hod Judge Hirsch in high regard and do not believe he did anything wrong. But imagine if I ignored this issue and didn't do a blog post and didn't allow comments. How hypocritical would I be then? Protecting my friends and people I like? I sincerely hope this blows over fast.

WE LOVE OUR OBTUSE JUDGE said...

There will be reading of Shakespeare's 12th Night and some Chaucer and some box scores from old Chicago Cub games from the 1960's today at noon at the fountains in front of the justice building. RALLY FOR MILT.

"Keep Obtuseness on the bench" is our rallying cry.

Anonymous said...

Why yes, Rump, you should think twice about letting third parties comment on a judge because this douchebag will probably report you to the Flordida bar just like JAABLOG was reported.

Mr. Justice Milton HIrsch said...

From The Desk of Mr Justice Milton Hirsch:
To: Moneypenny
RE: Interviews

Moneypenny: Please respond to the pending interview requests as follows: NPR yes- but they need to send a correspondent in person. No telephone interviews. Gwen Eifel of PBS- yes via skype, have them email details.

Leno- NO.
Kimmel yes, but they need to email asap transportation details ONLY BY PRIVATE PLANE.
Letterman- maybe, depending upon Kimmel and the plane. Tell Letterman's booker Stu that I am still considering it- meanwhile get a confirmation from Kimmel.
Anderson Cooper CNN- Yes but I'll need a limo to the studio for the satellite feed and let them know I might not be in Miami when they want me.

Channel 7 Miami-are you kidding? No chance.

Finally Moneypenny, I am tired of having to go over this. Morning coffee should be on my desk by 7:43, as I am usually in chambers by 7:44. And it is TWO SPLENDAS and ONE EQUAL not the other way around. I can tell the difference.

Please file this in Hirsch, papers, VOL !6, June 2013.
MH

fake guest blogger said...

A hottie on google has the hots for Rump? HA-HA-HA-HA-HA!! Oh please give me a break! When it comes to hotties SFL has a harem of them.

Anonymous said...

SFL took time off to windsurf. He;s in a shack on a beach in the Fla. Keys with Bolero on replay.

CAPTAIN said...


THE CAPTAIN REPORTS:

George Zimmerman Trial ....

One of the "experts" hired for TV in this case is attorney Luis Calderon. Here, he is asked about the jury selection process. Listen to what he says when asked about what a Peremptory Challenge is and how many you get in this trial.

Did he get any of this right? If you were not an attorney, would you have a clue as to the process after listening to his answers?

Calderon, by the way, has been at attorney in Florida for barely seven years.

You decide.

http://www.local10.com/news/striking-and-
challenging-jurors/-/1717324/20542324
/-/7dd6p5/-/index.html

Cap Out ,,,,,
Captain4justice@gmail.com

Royally Fake Emperor Jorge Cueto I said...

The Most Right Honourable Mister Chief Justice of the United States, His Serene and Gracious Majesty Milton Hirsch, enjoys sovereign immunity, therefore, all further motions with regards to these tapes contumaciously filed by any person whatsoever, are hereby DENIED per testis without further perorarion, and any previously entered orders in this cause are hereby VACATED and HELD FOR NAUGHT as improvidently granted for want of jurisdiction over the subject matter and the person of Mr. Chief Justice Hirsch.

Anonymous said...

Captain,

"Expert" attorney commentators don't get hired for TV. Production assistants do Google searches and call lawyers whose websites come up. Those that want to be on TV can be.

Anonymous said...

Rumpole, why would this young man and others fight so vigorously if the tapes did not contain evidence that Hirsch and Rappaport lied in court. If Hirsch and Rappaport have nothing to hide, let them ask to have the tapes and transcripts unsealed so everyone can see for themselves who is telling the truth, but Hirsch and Rappaport will not do that because they know what is on the tapes. You defend Hirsch, Rumpole, and cannnot believe he would do this, but everyone makes mistakes and Hirsch made a big mistake when he told his client to flee the country and then lied about it in court to save himself. Please read Judge Rothenberg’s opinion. I applaud Judge Rothenberg. She took the time to look into every detail of the case and wrote a lengthy opinion. She saw what the courts have missed for years - shame upon the court and the judges on this case for not wanting to see the truth. I applaud Judge Fernandez and Judge Salter for also seeing the injustice and agreeing with Judge Rothenberg. Everyone tried to protect Hirsch, but not now. You said you hope this will “blow over.” This will never “blow over” until Hirsch and Rappaport are exposed for what they truly are and what they did.

Mr. Justice Milton HIrsch said...

Dear Diary:
Eisenhower on June 5, 1944; Kennedy during the bay of pigs; King the night before the march in Washington, Nixon August 1974, Clinton the night before impeachment proceedings. Great men - all faced with challenging situations.

So now I join the pantheon of those great leaders as history throws me a curveball and I now know my actions over the next few days and weeks will be as closely scrutinized by historians as days before the decisions those men made are still scrutinized.

"These are the times that try mens souls" and "Uneasy rests the head upon which the crown rests). These are the thoughts upon which I reflect while the appellate court (that damn Rothenberg) strikes at the prince.

I have not yet determined how I shall respond. but I want my papers to document that I am acutely aware that the eyes of the nation, yea the world are upon me, and history shall judge- harshly or not- the decisions I shall soon make.

MH
Miami June 2013.
To be filed in the the Papers of Mr. Justice Milton Hirsch, June 2013, Vol 16.

Rumpole said...

5:12 I do not think we disagree. I have read Rothenberg's opinion and I wrote that she was correct I am deeply troubled that the tapes have not been released. That being said, I have also opined that I believe Hirsch when he testified that he did not counsel Casey to flee. But believing him doesn't change my view that the tapes should be released. They should.

Anonymous said...

People that write (or talk) too much (Milt) generally have something to hide. I's sorry, I think of Milt and the word "Shyster" just pops into my mind.

Anonymous said...

Just a question, the state moved to seal the tapes based on a violation of 934. Is there any evidence in the record that Hirsch moved to seal the tapes, has any standing to move to seal the tapes, or took any position on the sealing of the tapes? I know accuracy here is an afterthought, but just wondering...

Anonymous said...

missing tapes...

Juan Ramirez, Jr. said...

I was on the court when this case was percolating through, so as tempting as it is to jump in, I cannot. But you should bear in mind that it is illegal to tape someone surreptitiously. To allow the use of an illegal recording should be a frightening prospect for every criminal defense lawyer.

Anonymous said...

Wow, that was a great well thought out dissent.

Does the defendant and his mom have another copy? Were they smart enough record them but then turn over the only copy?

If I were this kid I'd probably take a chance and release them. Sure, he'd be held in contempt for violating the judges order not to disclose them.

But the truth would be out and if those tapes say what he says they do, a contempt charge would be nothing compared to the vindication he would feel.

Anonymous said...

The court doesn't have to allow use of the tape as evidence. I think there's obviously strong case that it was illegally obtained.
But it could be used for impeachment.
And there doesn't seem to be any legal reason that the court ordered it to be sealed.
Lots of recordings are inadmissible in court but that doesn't mean that nobody is allowed to hear them.

Anonymous said...

LMFAO............good to see you "not" weighing in Juan.

Now a question .......suppose an illegal tape proved a defendant's innocence. You think the courts should ignore it? What about all of those tapes that people take surreptitiously showing police misconduct? Should we ignore those too?

BTDT

Anonymous said...

So let me get this straight Juan........the State can use a statement taken in violation of a person's constitutional rights for impeachment purposes, but a defendant can't used a statement taped in violation of a statute for impeachment purposes?

PLEASE.

BTDT

Anonymous said...

55:12 and Rumpole: I think that Judge Rothenberg's opinion is quite comprehensive , and, among other things, makes it pretty clear that anyone can tape an encounter with a cop. But, to make this tape subject to disclosure when it is between private parties, a crime must have occurred. The law is not that it is usable if someone claims a crime has occurred when it has not, nor is it admissible just because the allegation is made. I do not understand, however, why the tape was not in the record as the Third can tell whether or not an actual crime likely occurred. I wonder why Judge Rothenberg went to as much trouble as she did to detail; the testimony. The Third should have reached down and ordered the tape up rather than just print what the felon and felon’s mother said.

Anonymous said...

Whenever I watch the US Open I think of Old Tom Langingham, a criminal defense attorney from the 1950's and 1960's and inveterate golf hustler. He probably took more money from tourists and traveling pros on the courses around Miami in the 1960' than most pros made on the tour. I personally saw him hustle a 10,000 skin. And he lived off the 50-100 Nassau which back then was a lot of money. I am pretty sure he played as an amateur in a few us opens. Either at Olympic, Oak Hill, or Baltusrol in the late 1960's.

The guy hovered between 275 and 300 pounds but he was a trained athlete. He ran 15-20 miles a week, lifted weights (very rare for that time) and even did some stretching and yoga (extremely rare for those days) but boy could he drink. If he couldn't beat a golfer, out came the Johnny Walker and he would just drink the guy under the table. Sometimes literally.

Great memories. Great guy. Eventually cashed out a private pension and took up hustling golf in Hawaii.

Anonymous said...

11:36:00 AM - Judge Rothenberg also quoted Hirsch’s testimony. How do we know they don’t have the tapes, but cannot disclose what is on them because, for now, they must remain sealed (See footnote on page 10). Also, read the last sentence on page 3, continuing on to the next page “If these errors are not ultimately corrected, Dr. Rappaport will be shielded from possible criminal prosecution and/or review by the Florida Department of Health; Hirsch will be shielded from meaningful review by The Florida Bar.

Anonymous said...

4:36 How could the tapes be sealed if the Third rules that they should not have been? Is your point that the trial court can seal tapes, the tapes can go up to the Third, and even if the Third thinks the tapes shouldn’t be sealed, they can't unseal them?