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

Friday, November 08, 2013

WHY ERIC RIVERA CANNOT BE SENTENCED TO LIFE

Can Judge Murphy legally sentence Eric Rivera to life? 

We say no, attorney David Weinstein says yes. We invited him to present his argument, and we have it here, completely unedited.  You decide. 

Mr. Weinstein, as the guest, goes first. 






Rumpole's argument (which isn't really a response since, believe it or not, we didn't read his argument until after we wrote ours.)





That's more than enough law for this blog for one day. 
Enjoy the weekend. 
The survivors in the survivor pool fight on. We lost one last week. 

See You In Court. 


21 comments:

Anonymous said...

You may both be correct. Mr. Weinstein approaches the issue purely on the law without the benefit of the facts that will arise at the sentencing hearing. Thus, under his position, the law allows for the imposition of a life sentence. Rumpole, however, has gone beyond the law to the "similarly situated" analysis and has concluded that a life sentence is not warranted under the circumstances. That, however, does not render Mr. Weinstein's take on the issue incorrect. In fact, from a purely legal standpoint, Mr. Weinstein's position is correct. From a factual perspective, Mr. Rumpole may well be correct as well. Only time will tell and indeed, Mr. Rivera may expect to get a bunch.

Fake Risivy said...

Rumpole by a split decision. He is clearer and more concise and a more basic and simpler argument.

Anonymous said...

One argues "can", one argues "will".

The point in contention, originally, was "can".

Weinstein wins, though Rump's point that it will not happen is correct and non-responsive.

Anonymous said...

The truth of the matter is that Graham controls and that is that.

Anonymous said...

Rump says take the under in the Rivera game. I'm on it for 350 Murphys.

Rumpole said...

No you miss my point. He CAN'T Because of the sentence given a simialry situated co-defendant and the requiment that Murphy issue a proportionate sentence.

Anonymous said...

I agree with 7:37.
Rumpole, at 9:38 you say it's not just can vs. will, but because there's already been one defendant sentenced it actually then changes to CAN'T?
So Rivera gets a benefit because one of the other defendants has gone to trial before him and gotten 29 years? If he had been first then would your analysis be different?
Or if the judge in the 1st case had given life, then Rivera would be eligible for life also?

Anonymous said...

President Obama nominated Judge Robin Rosenbaum to the 11th Circuit! WOW!

BTDT

Anonymous said...

Rumpole: Your proportionality argument (i.e., that the court cannot sentence the defendant to a harher sentence than the one received by his equally culpable co-defendant) misses the mark. Where the co-defendant's sentence resulted from a negotiated plea (and especially if the co-defendant provides significant testimony at the trial of the defendant) the court may properly impose a sentence that exceeds the sentence received by the co-defendant. Lugo v. State, 845 So. 2d 74 (Fla. 2003); Diaz v. State, 513 So. 2d 1045 (Fla. 1987); Garcia v. State, 492 So. 2d 360 (Fla. 1986). While the co-defendant's sentence (and his level of culpability) is certainly relevant in determining a proper and proportionate sentence, in this case it does not (necessarily) prohibit the imposition of a harsher sentence on the defendant.

Anonymous said...

Murphy will give the kid life and left the appellate courts tell him otherwise.

the trialmaster said...

It really does not matter. This punk will spend decades in jail. Probably 50 years.

Rumpole said...

No- Rivera is getting a benefit because 1- a co-defendant received and accepted a plea before he went to trial; 2- Rivera had a non-life plea before going to trial and we all know you can't punish a defendant for going to trial; and because having received a non-life plea to a more serious charge ( first degree degree murder with a firearm) he cannot now get life convicted by the jury of a less serious charge.

DS said...

Murphy will give Rivera 40 years

Anonymous said...

"2- Rivera had a non-life plea before going to trial and we all know you can't punish a defendant for going to trial;"

Humor!

Anonymous said...

"having received a non-life plea to a more serious charge ( first degree degree murder with a firearm) he cannot now get life convicted by the jury of a less serious charge."

Is there a cite for this? Where it waan't a court offer?

Anonymous said...

i hate you. I am consumed by plotting your demise. And yet I love this blog. It is so confusing for me.

Anonymous said...

So prosecutor ken Anderson in Texas, lately a former judge, tries a murder 25 years ago. Sits on Brady material. Innocent man spends life in prison.

Judge Anderson pleas to contempt and gets 10 days! How does this guy not get life? He had amazing power and used it to purposely
ruin a life.

He lose his bar card , too. Big deal, the old a hole was about to retire anyway.

Anonymous said...

Rump, you fail to consider the federal concept of relevant conduct. Burglary that involves a murder absolutely could get a life sentence under the federal case law. Graham does not control because of the relevant conduct in this case (murder). I hope Murphy gives him life.

Anonymous said...

rivera snuffed out the life of the second best free safety in the history of the u. he came to our city and killed one of its heros.

murphy will do the right thing.

Anonymous said...

Nothing better than sitting on my dock on a cool November evening, drinking some red wine, a Shumie Cigar, and a big check to deposit Monday morning. Lovin da life.

Anonymous said...

Many years ago Judge Frederick Barad in response to a Brady argument put before him said:

"Brady, Brady, vhat's dis Brady? Aha, I see. Brady was a Robbery, this is a Bruglary, so it does not apply."

Weinstein, to say Graham only dealt with a life sentence in an Armed Burglary and this a homicide, so it does not apply seems to Baradian. You don't see the forest for the trees. Graham is controlling. Give it up and accept the 50 year sentence.