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, September 04, 2013

A HYPOTHETICAL

Court is closed Thursday. Why? 

A Job Well Done goes out to ace PD David Sisselman who pried a 12 year sentence out of Judge Rodriguez-Chomat in the widely reported  case involving a hate crime assault in Hialeah by a Hispanic man against two stranded African American motorists. Sisselman started the defense by convincing the jury to convict the defendant of the lesser included offense of aggravated assault (down from attempted murder) and followed that up with a thorough effort at sentencing that included the expert opinion of FIU African American scholar Marvin Dunn that the defendant was not a racist. 
A sentence of 12 years when the max was 60 and the prosecution typically asked for 30? Well done Mr. Sisselman, well done indeed. 
Ovalle's coverage in the Herald is here. 

A Hypothetical: You may have seen this on the FACDL listserv. We have changed the names to protect those involved. You may be surprised at our take: 

Client charged with an  exportation of  firearms charge.  The defense was that the client had not taken a substantial step to committing the attempt. The guidelines for this charge are 46 months where someone has no priors.  After plea negotiations the parties agree to a Rule 11(c)(3) plea wanting to guarantee the sentence. The client was willing to take it in order to avoid the chance of losing and getting 5 years after trial.  Prosecutor agreed to the plea, however the judge would not accept the 11(c)(3) plea.  AUSA told defense that if client pled he would continue to recommend six months.  Defense declined the offer.  As soon as the judge took the bench to begin trial, the government moved to dismiss the Indictment. 

Query: was the prosecutor's last minute attempt to get the defendant to take a plea to six months done in bad faith, knowing that if the defendant rejected the plea the prosecutor was going to dismiss the charges?

Rumpole, surprisingly says "NO." Why? Because there is a difference between the ability to prove a case at any particular moment and proof sufficient to prosecute the defendant. For instance, a prosecutor may have a confession and DNA and if the lab loses the DNA and the cop who took the confession is indicted, the prosecutor still has a good faith belief in the proof of guilt. The prosecutor cannot lie and announce ready for trial when that is not the case. Nor should the prosecutor insinuate off the record in private discussions that s/he is going to try the case when they are not. But as long as they believe the evidence shows guilt, they have a right to attempt to salvage a plea even if other circumstances dictate that they cannot proceed to trial. 

See You In Court, where the last time a prosecutor bluffed us, Zybigniew Brzezinski was National Security Director. 




23 comments:

Anonymous said...

Mr. Rumpole,

We are getting really tired of you putting our FACDL list serve memos on the blog.

Why can't you let us talk without publishing every fucking thing we discuss? You are making many afraid to simply ask for advise.

Could you please cut it out?

Anonymous said...

The attorneys complaining about this asa/ausa's antics should alert kfr. If he is acting unethicaly, he may end up just an ausa very quickly...that office protects its scoundrels

Anonymous said...

Me too Mr. 8: 22 pm.

Seems like everything we say at FACDL ends up on this blog.

Anonymous said...

I have to agree that the posting of these help requests is unconscionable.

Anonymous said...

@everyone if you're embarrassed to be heard saying something, perhaps you shouldn't be saying it (in public)

DS said...

Thanx for the praise.
But for a good laugh see FRED GRIMM's article today on this case .
The second half of Grimm makes me sound almost like Atticus Finch or Perry Mason; or at least (DS) Judd for the Defense.
Special kudos to DSU. Isis Homes ( my social worker ) who help line up both Dr. Dunn & Dr. Fernandez my Neuro-psych

Anonymous said...

What is the problem with Rump's posting the FACDL list serve memo? He removed the names. Further, it's not like these aren't going to get out anyway. You really think that if a prosecutor wanted them the prosecutor would have any chance getting them? Come on.

BTDT

Rumpole said...

If you truly have a problem with what I wrote, send me an email and we can discuss it. If I am wrong, I will remove it. I was wrong once....I think it as 1985.

Scot Saul said...

That's a very difficult and delicate situation. Good job David

Anonymous said...

Yes, well done DS, well done indeed. You managed to play the race card perfectly, all the while denying that this case was about race.

Anonymous said...

No problem with you posting the truth but, why can we not have a FACDL list serve that shows up on a public blog?

I would prefer if you didn't post stuff from the FACDL list serve.

Anonymous said...

It's not a matter of you being wrong. But I do believe that crim defense lawyers need a forum within which to discuss issues. I know using email and wanting to be confidential has problems but your posting creates problems for the lawyer. Maybe the lawyer wanted to address with the US Attorney and you should give the lawyer a chance to do so before making the issue public.

If I were you I would have reached out to the lawyer and asked if you could post.

Anonymous said...

I MADE that listserve.

It was great because of me.

Because I am great.

Since I am no longer part of the listserve, the listserve is no longer great.

-Fake Mike Catalano

Bobby Reiff said...

It was brilliant move to call Marvin Dunn about possibly becoming a defense expert. Accolades to DS or whoever came up with that idea! Now that's good lawyering!

Anonymous said...

That email was meant for defense attorneys on facdl list serve which does not get to prosecutors, or at least we hope it doesn't. It was not meant to be published on the blog that is read by everyone, especially the person in question who used to work as a state prosecutor. Not cool!

Anonymous said...

F that guy

Anonymous said...

The prosecutor in question is well known for this kind of behavior. It is actually baffling that 4 years of ethically questionable conduct gets him a promotion to the U.S. Attorneys Office as a AUSA/ASA hybrid. I had an attempted murder pros'd by the state this week that was filed by this prosecutor. It was a "gangs case". For nearly three years, he kept trying to get our client to take a plea. Drop CDs of jail house calls saying he would use it as evidence even though he had never listened to them once. Tried every trick in the book to get us to plea out.

The co-defendant plead out, but we steadfastly rejected all pleas. After taking the deposition of their "gang experts" on the even of trial and both of these so called "experts" testifying that they have no knowledge about the incident in question and whether this incident was in furtherance of a gang, the state finally dropped all charges against my client.

Anonymous said...

I agree. While anything circulated on the FACDL listserv is obviously not private, it is meant to be a place where defense attorneys can share information that should remain within the defense community. Believe me, prosecutors have secrets among themselves.

Now, the AUSA, who used to be a state prosecutor and reads this blog, knows that he was discussed in a negative fashion in private by a defense attorney. How are his interactions going to be with that defense attorney from now on?

Rumpole said...

First of all what I printed contained NO negative statements about the Ausa. Second- for all the chatter, I haven't received one email asking me to take it down. So I view it as chatter nothing more.

Anonymous said...

F that guy

Anonymous said...

I am the FIRST winner of our NFL suicide pool this year!!! Go Broncos .... I am thrilled!

Anonymous said...

Rumpy,

The cat is out of the bag. All a bunch of us are asking is that you stop in the future publishing FACDL emails from the list serve.

Please stop doing that.

Anonymous said...

As an African American I have mixed opinions about the sentence, but do not know enough about the case to have anything more than an opinion (and we all know that opinions are like.....). I do know DS and know that he is an excellent attorney and that his client is fortunate to have had him as his attorney.

The case does bring up an important question/conversation piece that I have spoken with others about but don't think they get the full depth of it. "Can you do something to someone motivated by race and not be racist?" Or when you point it out not be accused of "Playing the race card" Prosecutors always get offended when I ask for a race/gender neutral reason for a pre-emptory strike of a minority juror. Most often the juror happens to be African American and have the misfortune of having a friend or family member who was arrested, and were honest about it. They also happen to be one of many African Americans who are kicked off for something beyond their control, that doesn't affect their ability to be fair and impartial. Nevermind that there are other similarly situated jurors who weren't stricken, I lay the record and continue.

Anyone commenting on this post is requested to be an adult and not turn this into a hatefest.