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. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Wednesday, November 06, 2013

EX PARTE


CANNON THREE, CODE OF JUDICIAL CONDUCT:

(7)A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.....


From the Miami Herald: 

A Miami-Dade judge was set to release from jail a suspected Kendall burglar shot by police after a harrowing high-speed car chase — until Secret Service agents paid a visit to her chambers.


Query: How is this not an ex parte communication? 

The facts, as contained in the Herald Article here: 

Stephen Arnoux was awaiting trial on charges stemming from fleeing from the police (who shot at Arnoux, or in the words of his lawyer Andy Rier, "used him for target practice.")

Rier had successfully argued to have his client released on house arrest, until United States Secret Service agents paid Judge Verde a private visit in her chambers where they told her that the federal government was fixin to indict Arnoux on (*gasp*) identity theft and fraud charges, which caused Judge Verde to change her mind. The Herald quoted Judge Verde as saying this:


“I am alarmed about what I heard,” Verde told his lawyer, saying she was worried Arnoux might leave jail and flee with the money he allegedly stole. “I have a duty to protect this community."

Because the facts are from a Herald article, and possibly in dispute,  we re-printed below a comment from a reader who presents the other side to this. You should read it. But if even remotely true, the facts are disturbing. 

Lets take this slowly. 

"I am alarmed by what I heard."  What the Judge heard was in private, and presumably not under oath. The defense had no notice nor ability to confront and cross examine the witnesses making allegations against the defendant. In other words, a secret "star chamber" proceeding. 

"I have a duty to protect this community."  From what? A person who has not even been formally charged, and even if he was charged, he is presumed innocent. 
We spent some time perusing the Code of Judicial Conduct, and we were unable to find "A Judge has a duty to protect the community where she serves." anywhere in the Code. 

So lets see how our adversarial system of justice has been turned on its head. Now it's the police, the prosecution, and the judge worried about the community, while on the other side is a defense attorney with no impartial person in the middle. 

In how many other circumstances can Judges now fulfill their new  duty to protect the community? Lets count a few: 

"The police acted illegally and normally the evidence would be suppressed, but that would prevent the successful prosecution, and I have a duty to protect the community, so the motion is denied." 

"My duty to protect the community supersedes my duty to protect the constitutions of Florida and the United States, so the motion to reduce bond....or the motion for judgment of acquittal.....or the motion to suppress ....is denied."

Has anybody been to an investiture lately? Just when did they change the oath of office for a judge from preserving, protecting and defending  the constitution to protecting the community? 

[Update: But an alert reader replied to our argument:

 Anonymous said...
While I agree with you Rump that a judge does not have a "duty to protect the community," (Maybe that duty belongs to the police and the prosecutors? Go figure), Fla. Stat. 903.046(e),  Purpose of and criteria for bail determination- does provide that a judge should consider the nature and probability of danger which the defendant's release poses to the community.
Thursday, November 07, 2013 7:33:00 AM
 ]


And finally, just how does the U.S Secret Service get the ability to see a judge, in private, about a pending case? Just how does the Judge allow such a private chat in light of Cannon Three? 

Is the 3rd DCA now just for defendants? If the state gets a good decision, the defendant appeals. If the state gets an adverse decision they just send some cops or feds into chambers: "Judge, you didn't hear the whole story in open court. Let us tell you all the bad stuff we think the defendant did...."  Dick Cheney may approve of such a procedure, but at the moment, the constitution frowns on such conduct. 

In fact, lets just streamline the whole process. Do away with open court. Let the state prepare a set of facts and send them privately to the judge. Then have the witnesses and cops go into chambers and tell the judge  in their own words what happened, and then the judge can just take the bench, and in fulfillment of his/her duty to protect the community just tell the defense what the verdict and sentence is. Things would happen much quicker. And it would be a whole lot easier for judges to fulfill their god given responsibility of protecting the community then having to deal with this whole bill of rights mumbo jumbo. 

Right? 

See You In Court, or whatever is left of court, because lately all the real action is in chambers. 

UPDATE: We received this comment with the other side of the story: 


Anonymous Anonymous said...
Do any of you even know what happened? Agents were in court looking for the defendant. Corrections brought the agents back to chambers. Verde asked them what they wanted and they advised her that the defendant was going to be indicted. She called the attorneys immediately and placed the matter back on calendar. She asked Rier if he wanted a recusal and advised that she would grant his motion. He said NO. The case is on calender on Tuesday for ruling. You are all so quick to accuse a anyone of misconduct. Ask Rier how he feels about Verde. He said in open court that she was extremely fair and would not want any other judge to handle this case.

Wednesday, November 06, 2013 6:49:00 PM
 


For those of you tuning in for David Weinstein's argument on the Rivera sentencing we were a bit pre-occupied lately and then this jumped up, but we'll get to it shortly. 










Read more here: http://www.miamiherald.com/2013/11/05/3733325/after-visit-from-federal-agents.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/11/05/3733325/after-visit-from-federal-agents.html#storylink=cpy

34 comments:

Secret Judge said...

Maria Verde is an absolute sweetheart. One of my favorite people, but woefully unqualified to be a judge in any Court. How could she not know this was totally improper and wrong? The day will come when a minimum of 50 jury trials will be a condition precedent to being appointed or elected to a judgeship. The problem of such a requirement is that there would hardly be a woman on the bench, and we all know diversity supersedes everything else.

MC Waste Services, Inc said...

maria verde has a duty to be a judge and a duty to leave her ASA hat behind. Sometimes bad people get away with murder. Verde needs to realize this now and not in a private way.

Anonymous said...

Rumpole -- what comments do you have on Broward Circuit Judge Imperato and being arrested and placed in jail last night? Isn't that an "intentional" violation of the criminal law vs. Judge Verde making an "unintentional" rookie procedural error.

Judge Verde was probably intimidated by Federal agents coming into her chambers and froze. She should be counseled and I know that she will learn from her error. She should recuse herself immediately and acknowledge her error.

DUI is just as serious an error and is a crime. Violating the Judicial Code is serious but it is not punishable by jailing the Judge.

In the old days, the Chief Judge would send her ASAP to Juvenile Court for several years!

Secret Judge is completely right ...


Anonymous said...

Verde goes exparte every fucking day.

What else is new.

Anonymous said...

Do any of you even know what happened? Agents were in court looking for the defendant. Corrections brought the agents back to chambers. Verde asked them what they wanted and they advised her that the defendant was going to be indicted. She called the attorneys immediately and placed the matter back on calendar. She asked Rier if he wanted a recusal and advised that she would grant his motion. He said NO. The case is on calender on Tuesday for ruling. You are all so quick to accuse a anyone of misconduct. Ask Rier how he feels about Verde. He said in open court that she was extremely fair and would not want any other judge to handle this case.

Anonymous said...

You are assuming that what was reported by the Miami Herald is completely accurate. That is a dangerous assumption.

Anonymous said...

Verde means well but lacks judgment and common sense.

Rier won't recuse her because he knows she is a bleeding heart and lacks the balls to stand up to him.

Verde can't go a day without an ex parte conversation, and the she is so clueless, she doesn't even know she is doing it.

She has no business being a circuit court judge, and she is not even qualified to preside over traffic tickets, either.

ps: how much do you want to bet that she's the one who posted at 6:49?

Rumpole said...

You're right. I amended the post. Take a look at it now.

Deep Throat said...

Who dropped the dime on Verde and called El Herald? All signs point to the disgruntled party.

Anonymous said...

Corrections brought the agents back in chambers? Ummmm. What is that all about. Sign your name to your posts judge.

Anonymous said...

With the world series of poker over, will Alex Michaels be going to Vegas next month to play in the Romanian poker open? In Romanian poker, players scream and curse and berate each other into getting them to trade cards. "Come on, you don't need dat seven of spades. I von't help you. Give it to me or I vill throw my drink at you."

Anonymous said...

Yeah the agents were there looking for the defendant that's plausible. He's in jail. Maybe they went to Verde's chambers not to ex parte her but to get directions to DCJ?

Anonymous said...

Former PD:

Most of you have never been in front of Verde more than once or twice. She always tries to do the right thing. She is not vindictive like some other judges and she will never hurt our clients. Hold off on your attacks before all the facts are heard. And even if they're bad, this was a rookie mistake. Some of the best judges in the courthouse have done more harm their first round on the bench.

Rumpole said...

Well now just hold on a second. These were federal agents.They couldn't find WMDs in Iraq, how would they be expected to find DCJ. I mean besides walking out of the back of the courthouse or asking those same correctional officers where the defendant was?

Anonymous said...

Judge Verde has made every effort to be a good and fair judge. If she erred, it will not happen again.

Where is the outrage for judges who exparte ON A DAILY BASIS? Its alomost impossible to prove, except for that erie feeling one gets when something's afoot. The only proof is an implicit comment on the record and the fact that we saw the winning attorney exit the judge's chambers recently...with a big grin on their face.

Anonymous said...

Free Alex Michaels!
Ex Parte the 3rd DCA!

Anonymous said...


Journalism my ole chap is clearly another subject you skipped in school.

One would have thought that, before printing this libelous drek you might have thought to email either the ASA or the defense attorney or the Judge and at least give any one of those three a chance to clear the record.

If any of them had told you what 6:49 PM told you, your story might have read a bit differently, no?

You have a responsibility to get it right, even when the Herald does not.

Anonymous said...

Accepting information from the Miami Herald as fact is dangerous. I would not base any opinion on what they write. This is particularly true in legal proceedings. The media is largely entertainment. The real story is hardly ever covered. The reporters rarely have any idea what the heck is actually going on; and that's before you even get to the issue of bias.

Rumpole said...

Yeah because it probably went down something like this:

After the hearing, two secret service agents, race into the courtroom and collide with a corrections officer.

"Quick" they shout, "take us to the jail."
The corrections officer, dazed by the collision, leads them out the back door and into the Judge's chambers, where the secret service agents, thinking this was the jail reception desk, start babbling about needing to see the defendant because he's going to be indicted in federal court. Meanwhile, the judge, after a difficult morning calendar, has stopped by her JA's desk to work on the jigsaw puzzle they are all doing, and overhears that the defendant has new charges, and becomes so alarmed for the safety of the community, because this is that one case in a decade when someone has pending state and federal charges, that she immediately revokes her prior decision before falling to her knees and sobbing in relief that a horrible tragedy was narrowly averted by sheer luck.

Yeah, I'm sure it was more like that than two feds ex parting and bullying a judge in her chambers.

Anonymous said...

round to Rumpole.

FOX TV said...

Coming this summer on FOX TV:

A pair of sassy, sexy crime fighters who don't follow the rules with the flair of a cuban accent. One wears a badge, one wears a robe: Maria Verde Crime Fighter! A judge who goes all the way to protect the community!

"Freeze scumbag. Drop the gun and raise em!"

But....you're wearing robes. You a judge?"

"Get used to it and tell all your scummy friends, there's a new sheriff in town and she's a judge."

You won't want to miss an episode of this all new crime fighting drama. By night she makes cases, by day she does arraignments and bond hearings and trials. Maria Verde Crime fighter circuit judge. New on FOX on Fridays at 10.

MR. Justice Milton HIrsch said...

"Damn it,...Moneypenny get in here!!"

MP"WHat is it chief?"

"I can't send an email. I just tried to email the judges and got back a response thanking me for my purchase of Kraft Cheese American Slices. Last night I tried to email by sister Estelle and received a reply from the American Teen Whalers Association. Look at my in box! Full of ads for Orville Rednbockers popcorn and ads for farmers market bing cherries."

MP: "Just dictate. I'll send an email for you."

"MCJMH: "TO all Judges. From: Mr. Chief Justice Milton Hirsch. RE: Cannon of Ethics.

"Dear Colleagues. It's that time of the year again when I give my refresher lecture on the ethics and obligations of judges. As the holidays arrive and lawyers try and ply us with cheap liquor and plastic sex dolls....wait...strike that sex dolls thing. No one knows about that right? "

MP" No one knows chief."

MCJMH: "Ok continue....cheap liquor and other small trinkets, we need to review our obligations as judges and jurists and magistrates of our society. The meeting will be in 4-1 noon this Friday. A light snack of Kraft Cheese, popcorn and bing cheeries will be provided. Yours, etc.,..."

MP: "Got it"

MCJMH: "Ok. Please work on my email for me. I have some very big business deals being negotiated, especially with a colleague in Nigeria regarding some outstanding unclaimed funds. This is a big one and I cannot have it screwed up by email spam."

MP "Right away chief."

Anonymous said...

While I agree with you Rump that a judge does not have a "duty to protect the community," (Maybe that duty belongs to the police and the prosecutors? Go figure), Fla. Stat. 903.046(e),  Purpose of and criteria for bail determination- does provide that a judge should consider the nature and probability of danger which the defendant's release poses to the community.

DS said...

I saw part of Andy's and the Judge's argument on this case in court. I thought Andy was going to be held in contempt , the Judge was arguing how the ex parte was ok cause she had a duty to protect the community. She was arguing the facts of the recusal, thus requiring her to recuse her self.

Rumpole said...

Well said 7:33 am. I am going to put that on the front of the blog. it is the other side of the argument. Well done.

Jay Leno Monologue. said...

"And down in Miami yesterday....did you hear about this? There's this Judge who said she was a crime fighter. I know what you're thinking punk...did I fire six shots or five....go ahead make my day. But judge, that's a gavel you're pointing at me. Oh, yeah, never mind. Get along......Hey, that Obama Website is really something. I tried signing up for some health care and the next day I got a girls gone wild DVD in the mail. You know...health care...girls gone wild....tonight we have John Lithgow, Big Poppy from the Red Sox and Artie Lange with his new book Crash and Burn!!!"

Anonymous said...

andy is one of the nicest guys in the building. he is a good lawyer who works his ass off. and for a big guy he can rumba on the bases...

cysco kid

Anonymous said...

This shit happens all the time, but not like this fiasco. Officers want to arrest a defendant for a subsequent offense. If he's out of custody, the officers wait for him to leave the courtroom and then take him into custody. Then he's processed. Or, if he's in custody, they drop an a-form on him while he's in custody. Then he's processed. Most of the time, this happens with the prosecutor's knowledge and the presiding judge has no idea until the new case comes up in front of them again.

But to actually sit there and have a conversation with the agents shows a total lack of common sense. It doesn't matter if you put it back on calendar the next day.

The second she realized it was the classic example of an ex-parte communication, she should have told the agents to walk across the street and go talk to the state. And even then, she should recuse herself on her own motion.

The worst part about it is that the Herald article makes her look like some kind of hero. As if not for the agents and the judge, this menace to society would be walking the streets.

Verde should know better. She was an ASA and a criminal defense atty her whole career.

Anonymous said...

The Mark Gold story just got a little bit more salacious:



http://blogs.miaminewtimes.com/riptide/2013/10/mark_gold_fiancee_chandler_sutherland.php

Anonymous said...

Rump, I know it's a stretch to think you've read the Florida Constitution so I'll refer you to Art. 1 sec. 14:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. IF NO CONDITIONS OF RELEASE CAN REASONABLY PROTECT THE COMMUNITY FROM RISK OF PHYSICAL HARM TO PERSONS, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Circle K

Anonymous said...

Way to go, Mark Gold.

Anonymous said...

Herald and ESPN reporting today that Judge Verde took part in bullying Dolphin Lineman Jonathan Martin in her chambers.

Anonymous said...

Who is Judge Verde?
to Gold: Nice

MC Waste Services, Inc said...

http://www.palmbeachpost.com/ap/ap/crime/man-gets-45-years-for-girlfriends-death/nbjCC/ PINCHE WAY