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

Thursday, May 30, 2013

DON'T STARE AT THE POLICE




Peaceful Miami Fans flocking into AA Arena for a family-friendly fun evening of playoff basketball.




As we who practice criminal law in Miami know, there is "felonious staring" and "misdemeanor staring" although the distinction is sometimes a bit murky, especially to laymen. The result however is predictable: the police will beat your ass. 

Such was the case covered by the Miami New Times here: 

Fourteen-year-old Tremaine McMillian didn't threaten police. He didn't attack them. He wasn't armed. All the black teenager did was appear threatening by shooting Miami-Dade police officers a few "dehumanizing stares," and that was apparently enough for the officers to decide to slam him against the ground and put him in a chokehold.


What are you going to do with today's youth? You tell them time and time again: "don't stare at the police" but do they listen? 
No. 

UPDATE: More on this story from Salon.


See You In Court. 

Wednesday, May 29, 2013

CRASH THE SYSTEM

BREAKING: MIAMI HEAT LOSE AGAIN. 
"In response to the loss, Miami Heat stars didn't discount the possibility of joining the Indiana Pacers next year. 'If they beat us, then we should play there because we don't like losing' said a Heat player requesting anonymity."

CRASH THE JUSTICE SYSTEM. 
What if everyone rejected a plea and demanded a trial? That was the premise of this op-ed piece in the NY Times this past Sunday:
“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors...
(Rumpole notes: we've been screaming about this for years. The implementation of  minimum mandatory takes the sentencing decision away from the (supposed) fairest and wisest person in a courtroom (the judge) and places it in the hands of a prosecutor- some younger than 25- who are merely players advancing their own cause and institutional interests in an adversarial system. )
Take the case of Erma Faye Stewart, a single African-American mother of two who was arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail, with no one to care for her two young children, she began to panic. Though she maintained her innocence, her court-appointed lawyer told her to plead guilty, since the prosecutor offered probation. Ms. Stewart spent a month in jail, and then relented to a plea. She was sentenced to 10 years’ probation and ordered to pay a $1,000 fine. Then her real punishment began: upon her release, Ms. Stewart was saddled with a felony record; she was destitute, barred from food stamps and evicted from public housing. Once they were homeless, Ms. Stewart’s children were taken away and placed in foster care. In the end, she lost everything even though she took the deal.
Rumpole notes: these repercussions happen every day in a justice system geared to use  the weight of the government and fear of life altering sentences to coerce pleas. Any person who spends any time in any criminal court can hardly say that pleas are mostly fair deals that are in the best interests of the client. It's a broken system that is now only good at breaking people. 
See You In Court. 











Tuesday, May 28, 2013

404 B

In State court we call it Williams Rule. In Federal court they call it 404B material- evidence of prior crimes, wrongs and acts. 

In State court a judge just sentenced a lawyer to two days jail for silently saying a curse word (the judge said she read his lips). 

In Federal court, for the second time, prosecutor Andrea Hoffman has been caught being less than candid with the court and with her discovery obligations. From John Pacenti's  DBR article on 5/24/2012:


A visibly frustrated Marcia Cooke called federal prosecutor Andrea Hoffman "disingenuous," in questioning her candor about when she knew "vetted units" of the Colombian national police were on the payroll of the Drug Enforcement Administration...


The issue arose in the Miami courtroom of U.S. District Judge Marcia Cooke after defense attorneys raised questions about the role Colombian police played in the investigation of a cocaine trafficking ring that resulted in charges in Florida against 18 people. Defense attorneys started asking in April if Colombian police were paid for their assistance.
Assistant U.S. attorney Andrea Hoffman told Cooke's court she learned of the payments only after a jury was chosen Monday or on Tuesday.
Hoffman was apologetic and blamed miscommunication and a language barrier with Colombian police.


"This is why this does not make sense to me. This is all you do," Cooke replied. "Answer me this: Why does the government get a pass?"
The judge indicated she would reserve judgment on what sanctions, if any, she would impose, but her anger and frustration were palpable. She said Hoffman had breached her ethics as a prosecutor and apparently forgotten she represents the people of the United States...
The exchange with Cooke was not the first time Hoffman faced intense questioning by a Miami federal judge over her conduct in a criminal case. Hoffman was one of three prosecutors who faced sanctions for not telling a defense attorney that the government had its witnesses secretly tape his phone calls.
She was sanctioned in 2009 for her part in failing to inform accused pill mill Dr. Ali Shaygan that two prosecution witnesses had secretly taped phone calls to his defense team. Sanctions against three prosecutors and their office and a $601,000 penalty were overturned by the U.S. Court of Appeals for the Eleventh Circuit. But the substance of findings by U.S. District Judge Alan S. Gold's were not in dispute... Cooke declined to dismiss the case or declare a mistrial but added, "The tug in that direction is quite strong."
She noted the government witnesses were forthright about the police officers being paid and there seemed to be nothing illegal or nefarious about any bonuses.
Cooke also said she understood the defense may believe the officer's objectivity has been tainted by the DEA payments and wondered aloud if an appellate court might overrule her.
She then turned to Hoffman and said she would reserve judgment on her behavior in the case.
Rumpole wonders:
What conduct is worse: silently cursing, or a prosecutor caught withholding evidence for the second time in her career? 
See You In Court. 




Saturday, May 25, 2013

3RD DCA PCA'S TAKE TWO. (HEAT LOSE...HEAT GET BEAT.)




An excellent analysis of the recent spate of 3rd DCA PCAs caused us to re-think our prior criticism of the FIU/Kendall-Courthouse ensconced judges: 

 Anonymous said... While PCA opinions are short, if you actually read them you will learn the following: of the 29 criminal PCAs, six of them are Anders briefs (if you don't know what an Anders brief is, you should stop reading this blog and start reading the South Florida Lawyers blog); 17 of the criminal PCAs are denials of post conviction relief, 15 of which are pro se. Of the six remaining PCAs, 2 are plenary appeals from adult felony court and four are from juvenile court. Friday, May 24, 2013 3:13:00 PM 


Leaping to the defense of his former colleagues was the former CJ of the 3rd DCA:

 Juan Ramirez, Jr. said... If you think the Third District writes PCAs for such a questionable reason as to avoid Supreme Court review, you should check out Marshall v. State, 45 So. 3d 470 (Fla. 3d DCA 2010), in which the en banc court divided 6 to 4, with a concurrence and a dissent, in a developing area of the law (Crawford v. Washington). Of course, I would never suggest my former colleagues would resort to such a questionable practice. I am sure the panel had good reasons for not writing. Friday, May 24, 2013 8:17:00 AM 

 For those of you that do not know, Judge Ramirez left the bench for a much more honourable profession: blogger. His blog is here.

IF YOU CAN'T STAND THE HEAT....GO WATCH EM GET BEAT:
The Heat got beat, which makes our weekend complete. 
We watched  the Heat get Beat Friday night from a very nice box, far removed from the white shirted hoi-polloi -many of whom read this blog and have loved their precious Heat with every ounce of their being ever since the geographically challenged Lebron spit on Cleveland and decided to take his "talents" to South Beach (we just chuckle every time we imagine that carpetbagging phony finding out that the Arena was not on SOBE). 

The Heat's home court advantage disappeared as LBJ's two late turnovers (choke..choke) sealed his spoiled team's fate. 

And all you Heat fans, who are so devoted to this team (so you tell us repeatedly), can you explain to us why everyone was bolting for the exits with about 3 seconds left and your team only down by three? It's not because Miami Heat fans are bandwagon jumping front running phonies is it? 

With a hat-tip to @davidovalle305 who is enjoying the long weekend (and his non-paid furlough from the Herald) in Jamaica, here is an excellent description from an eyewitness to a shooting:




A long holiday weekend marks "di" start of summer. Have fun and "me" see you Tuesday, ready for trial. 



Thursday, May 23, 2013

THE HARDEST WORKING MAN

When we last left beleaguered Assistant Public Defender Jay Kolsky, he was the hardest working lawyer in the REGJB- a PD with something like half a million open cases (or perhaps closer to 600). The PDs drew a line in the sand and said "no more." One more case and Jay would drop like a hamster on a wheel, going no where and about to take one step too many. 

The case went to the 3rd DCA who said in formal staid legalese: "Get back to work swine", but the PDs weren't done. Jay needed to be saved. So Quiet Charlie spoke and marshaled the troops and went to the Supremes in Tallahassee. 

"Help" said Charlie, he a man of few words. "Jay can't take it anymore." (According to the opinion it took 26 volumes of court records to say what we just said in one sentence. No wonder the planet is in trouble.) 

Today the Florida Supreme Court ruled here. 

"Jay sounds like a good guy" said the court. Indeed Kolsky caught some Tallahassee love in footnotes 10 and 11 of the opinion, which are just too good not to re-print here:


10. At the time, Kolsky was the sole third-degree felony attorney covering his courtroom and had to absorb the caseload of his co-worker who left the office for other employment.

11. At the time, Kolsky had thirty-six years’ experience and was considered one of the best and most experienced lawyers in the office. 

As for the rest of the opinion, we'll summarize it here:
The PDs might be able to withdraw en masse or refuse appointment (look out Regional Counsel) if Jay is still as busy as he was when the PDs courageously said they would no longer ride in the back of the bus. 

A statute prohibiting the PDs and Regional Counsel from refusing appointment or withdrawing because of excessive case load is neither unconstitutional nor means what it says:

The court ruled:

Thus, we find the statute to be facially constitutional and answer the certified question in the negative. However, the statute should not be applied to preclude a public defender from filing a motion to withdraw based on excessive caseload or
page42image12536
underfunding that would result in ineffective representation of indigent defendants nor to preclude a trial court from granting a motion to withdraw under those circumstances. page42image13624page42image13352page42image13080page42image12808

And yet the statute reads:

section 27.5303(1)(d) provides that “[i]n no case shall the court approve a withdrawal by the public defender . . . based solely on the inadequacy of funding or excess workload. 

So much for the ol' "plain language of the statute" rule of statutory construction. 

And finally, and in our opinion, the worst part of the opinion with the potential for far reaching consequences, the nose of the State Attorneys Office stays firmly under the tent of a motion to withdraw. Or to put it another way, the State has standing to object to your motion to withdraw. Mark our words, this has the potential, to quote Chief Justice William Howard Taft, "to be a real pain in the ass."

And so life is circular and all things often end where they begin. The case is remanded to our wonderful little circuit. Jay Kolsky will wheel a few thousand files into a courtroom and stare at them forlornly  and say that he just can't take it anymore. And now the Judge has the ability to say: "I hear you Jay...Appoint Regional Counsel." 

Next up after what has been fondly called "PD11"? 

RC3 v. State. 

See you in court. 






Wednesday, May 22, 2013

PER CURIAM, AFFIRMED

FREE ALEX MICHAELS UPDATE:
The 3rd DCA was a bit busier yesterday than we realized. This is their latest order:
That portion of this Court's order dated May 17, 2013, which grants the petition for habeas corpus, is vacated as improvidently entered. However, the stay shall remain in force and effect pending further order of this Court. The cause is remanded to the trial court for a determination whether to require the posting of a supersedeas bond. This Court retains jurisdiction over the matter which is treated as a petition for writ of habeas corpus. The petitioner is hereby ordered to file all relevant transcripts, including the evidentiary hearing and the violation of probation hearing within ten (10) days of the date of this order. The petitioner is hereby ordered to file an amended petition setting forth any and all legal arguments going to the challenge of the conviction and sentence within five (5) days of the date of the filing the ordered transcripts. The State of Florida is ordered to file a response to the amended petition within ten (10) days thereafter. Further, a reply may be filed five (5) days thereafter. No extensions of time will be granted. This cause is hereby set for oral argument on TUESDAY, JULY 2, 2013, at 10:30 o'clock A.M. with ten (10) minutes allowed each side for presentation of oral argument. WELLS, C.J. and SHEPHERD and LAGOA, JJ., concur.


Currently the courtroom for the oral argument is sold out. However, we might be able to get our hands on two, lower level, on the aisle. $350/a seat. Send us an email if you're interested.



So we're a couple of months into the Judge Soto administration as chief judge of the 11th Judicial Circuit. Anybody notice any changes?

3rd DCA PCA PARTY!
A brief check of the 3rd DCA opinions issued today shows twenty eight (28!!!) PCA's of criminal cases. There was one written opinion in which the conviction was affirmed in all respects except a remand to correct a sentencing error as "to a nonexistent statutory section."  That's how bad it's gotten folks: even nonexistent criminal convictions are getting affirmed. 
Twenty eight PCAs. None of these defendants were entitled to even the slightest of opinions? A few words here; an apodictic there?  Appellate lawyers know that the practical effect of a PCA is that there can be no appeal to the Florida Supreme Court. So what's going on here? Nobody is filing meritorious appeals worthy of even brief discussion, or....are our 3rd DCA judges making some tactical decisions about their legal decision? 

We heard you:
Over the last few weekends readers complained about the anonymous posts by various (?) individuals bragging about their sexual exploits. The general tenor of the comments were that that attorneys, usually older men, were having liaisons and assignations  with employees, or interns or attorneys, usually younger women. We heard your complaints and will no longer post such comments absent exceptional circumstances. Thanks for reading. 

See You In Court. 

Monday, May 20, 2013

JOINT POST BY JUSTICE BUILDING, SOUTH FLORIDA LAWYERS, AND SOUTHERN DISTRICT OF FLORIDA BLOGGERS


You lose your rights, not with a bang, but with a whimper. One small encroachment after another. A bureaucrat pushes the edges here, a prosecutor challenges the boundaries in a few cases there. No one says or does anything and then you look up and suddenly a cherished right is gone. 
Nothing is more insidious and dangerous to our constitutional rights than a bureaucrat who, under the cover of a government agency, seeks to intimidate someone. That is why the letters we have posted  from the Florida Bar to attorney and blogger William Gelin have so alarmed us: the bloggers who run the Justice Building Blog, the South Florida Lawyers Blog, and the Southern District of Florida Blog.


WIlliam Gelin runs the JAA Blog which covers the Broward County Courthouse. To Mr. Gelin's credit he has never sought to hide his identity as the lawyer behind the blog. As a blogger who has openly challenged the way things are done in Broward, Mr. Gelin has courageously taken on numerous people in Broward County, including judges. Now, apparently after a series of posts about two Judges in West Palm Beach and Broward County, (ironically) anonymous bar complaints have prompted the Bar to send Mr. Gelin letters seeking him to admit or deny his involvement in the JAA Blog. 

We as the legal blogging community in Miami view these letters as an unprecedented attack on the First Amendment and freedom of speech. The letters are chilling, and will have a chilling affect on the free speech of lawyers. Judges are invested with responsibilities and powers and all too often those powers cloud their judgment. The ability of lawyers to freely comment on a Judge represents an important check on those powers. The ability of citizens to write about the issues of the day has a long and storied history in our country. James Madison anonymously published many of the federalist papers under the pseudonym Publius in the local newspapers of the time. Blogging, anonymous and otherwise, serves a similar purpose. 

The Florida Bar's letters to Mr. Gelin amount to both a fishing expedition and a veiled threat for him to stop criticizing Judges from the pages of his blog.  We jointly condemn the letters the Bar has written, and stand behind our colleague in this matter. That is why all three blogs have taken the unprecedented step of running this post simulataneously. We urge our readers to voice their support of Mr. Gelin by writing to the Bar to condemn the actions of the Bar Counsel in this case. 

Thank you. 

Justice Building Blog
South Florida Lawyers
Southern District of Florida Blog

Friday, May 17, 2013

FREE ALEX MICHAELS!!!

UPDATE:
After finding Alex Michaels in contempt, Judge Miranda denied a request to allow him to post a bond pending appeal. This is most disturbing. The sentence was two days jail. Without bond pending appeal there would be no way for Mr. Michaels to seek review of the conviction for contempt without having already served the penalty. The judge's decision indicates that perhaps her emotions were involved, and that she was not impartially dispensing justice, but was angry and seeking to punish without regard to the rules, which are fairly clear:

(a) When Authorized. All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans v. State, 90 So.2d 308 (Fla.1956), provided that no person may be admitted to bail on appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. However, in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and the person's civil rights have not been restored or if other felony charges are pending against the person and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made.

FL Rule Crim Proc.  3.691

The 3rd DCA promptly ordered Mr. Michaels released when the petition was faxed to them Friday afternoon. Judge Miranda was simply wrong and her failure to allow Mr. Michaels to seek review of her order casts doubt on her impartiality and her decision in this matter. 


BREAKING!

Judge Miranda held a contempt hearing today for Alex Michaels. Nothing worth reporting about- sort of "dog bites man" story. In what week is Alex not in a contempt hearing?

But this afternoon, Judge Miranda sentenced Alex (he has a fake twitter account which is gaining cult status @draculawyer) to TWO DAYS DCJ!!!!

No idea yet what the allegations were, and whether Alex is out on appeal. Will update as we learn more.

Follow @Davidovalle305 of the Herald for the up to the minute theater.

UPDATE  1: Alex spent the week mumbling curse words under his breath allegedly about the judge and/or prosecutor. Not wise. 

UPDATE 2: 3rd DCA orders Alex released pending appeal. Alex happy Rudy Sorondo has retired. Who can forget the opinion in Quinones v. State, when everyone learned what "contumacious" means:
During the course of what should have been a simple case, defense counsel achieved unprecedented levels of attorney misconduct. Indeed, it is arguable that his intent was not to try the case at all but, rather, to sabotage it. Counsel's misconduct is best addressed as presented by the state in its motion for mistrial: first, repeated disobedience of the trial court's orders, and second, the suppression of physical evidence. His misbehavior unquestionably had a significant impact on the jury.

Defense counsel's disregard for the court's orders was not only unethical but contumacious. During the course of the trial, defense counsel directly and repeatedly ignored the court's ruling that no mention was to be made of the fact that the victim was incarcerated...


 But one bad omen on the horizon: Judge Rothenberg, who has held Alex in contempt when she was a circuit court judge, is on the 3rd DCA. Uhho.

UPDATE 3: David Ovalle has a portable putting green. 
Four letter word for  golf nut: nerd


Thursday, May 16, 2013

SHOOTING VIDEO

If ever you needed to be reminded about what a dangerous job police officers have (not that this excuses them in the least from their awful and wide spread habit of prevarication) here is the video of the marijuana grow house video in which MDPD Detective John Saavedra is shot.

We've seen a lot of these. This one is chilling.
The action starts at about 1 minute.





LIFE RECOMMENDATION:
The jury returned a recommendation for life in prison for Walter Bailey in a double homicide that was tried before Judge Tinkler-Mendez for the last few weeks. ASA Gail Levine (sans expectorations) for the state. Lane Abraham and Richard Houlihan for the defense. 
There are no judicial overrides for a life recommendation in Florida. 
As was pointed out to us in an email, the law allows for a judicial override but the standard is extremely high. As a practical matter, judicial overrides of life recommendations are difficult and rare. 
Query: Why is Florida the only state that allows for a non-unanimous jury to vote for death? 

See You In Court. 

Wednesday, May 15, 2013

PHIL DAVIS CONVICTION AFFIRMED

(Inmate Phil Davis)

The year was 1992 when the name "courtbroom" broke across a  Miami. First a whisper, the courtbroom scandal- a federal investigation into Miami Circuit Judges selling court appointments for kickbacks- crested and broke upon Miami and  ravaged the reputation of the Miami legal community like Hurricane Andrew roaring through a South Dade home built with chinese drywall. 

Judges Sepe, Gelber, Shenberg, and Davis, along with former Judge Goodhart and a gaggle of lawyers,  were all  eventually indicted. Gelber pled and flipped, rat that he was. Everyone else went to trial. All were convicted except a hung jury for Sepe (who later pled to one count to close out the case) and a complete acquittal for Phil Davis (thanks to the amazing job done by his lawyer, now Congressman, and former US District Court Judge until he was impeached, Alcee Hastings. And if that sentence doesn't tell you all you need to know about South Florida, then keep reading the blog.)

But like a bad penny that keeps showing up, former Dade Circuit Judge Phil Davis could not keep out of trouble. 
More than a decade after his surprising "OJ like acquittal" in federal court, Davis  was  convicted in Dade Circuit court for money laundering, grand theft, and participating in an organized scheme to defraud, all arising, not surprisingly, out of Davis's misuse of a charity. 

The 3rd DCA (Schwarz, Logue, and Lagoa) just upheld his conviction and TWENTY YEAR sentence here. 

Davis was an awful judge. 20 years is a devastating sentence for him. But really, does he have anyone else to blame but himself? He accepted bribes as a judge. He stole from a charity. At some point karma plays a role. 

See You In Court. 

UPDATE: Phil Davis trivia: who did Davis beat in his election as circuit judge? 




Tuesday, May 14, 2013

THE DEVIL IN JUDGE ALFRED NESBITT

The year was 1973. 
The Dolphins beat the Redskins 14-7 to cap off the perfect season. 
The next season, OJ Simpson became the first running back to rush for over 2,000 yards. 
The World Trade Center opened in NYC. 
A patent for the ATM was granted.
Henry Kissenger became Secretary Of State. 
The law authorizing the trans-alaskan pipe line was  enacted. 

Legally, the Supreme Court decided Roe v. Wade, Lexis/Nexus opened for business as the first computer research system for the law,  acting Attorney General Robert Bork appointed Leon Jaworski as the special prosecutor in the Watergate scandal. A few months later Nixon tells the nation "I am not a crook."

 In Miami, Florida, County Court Judge Fred Nesbitt is assigned a pornography case: The Devil In Miss Jones. 

The movie was viewed at the movie theater at the Olympia Building on Flagler Street at the request of the defense attorney: Diamond Joel Hirschorn. 
Special Assistant State Attorney Leonard Rivkind, who would one day go on to become the chief judge of the 11th Judicial Circuit, handled the case for the state.  The Miami News reported that Rivkind invited four priests to the screening. The News also reported that several dedicated assistant state attorneys squeezed time into their busy schedules to attend the screening. 






Special Thanks to the Random Pixels blog for this article. 

For you young PDs and ASAs puzzling over why Judge Nesbitt didn't just pop a DVD of the movie into his MacBook and hook it up to an LCD TV and play it in court, well, back then, as difficult as it may be to believe, there weren't many power outlets in courtrooms,  and the ability to plug in a LCD TV and a MacBook at the same time didn't yet exist. So everyone had to trek down to the movie theatre, which, believe it or not, didn't allow Starbucks drinks inside. It was truly a different era. 

See You In Court. 


Monday, May 13, 2013

FACDL AWARDS HANDED OUT SATURDAY NIGHT

Mother Jones is doing a series on America's Worst Prisons:
"Doing time is not supposed to include being raped by fellow prisoners or staff, beaten by guards for the slightest provocation, driven mad by long-term solitary confinement, or killed off by medical neglect. These, however, are the fates of thousands of prisoners every year—men, women, and children housed in lockups that give Gitmo and Abu Ghraib a run for their money.
The United States boasts the world's highest incarceration rate, with close to 2.3 million people locked away in some 1,800 prisons and 3,000 jails. Most are nasty places by design, aimed at punishment and exclusion rather than rehabilitation..."
Here is a link to the story on ADX: The Alcatraz of the Rockies:
Many prisoners at ADX interminably wail, scream, and bang on the walls of their cells. Some mutilate their bodies with razors, shards of glass... and whatever other objects they can obtain. A number swallow razor blades, nail clippers, parts of radios and televisions, broken glass, and other dangerous objects. Others carry on delusional conversations with voices they hear in their heads... Still others spread feces and other human waste and body fluids throughout their cells, throw it at the correctional staff and otherwise create health hazards at ADX. Suicide attempts are common; many have been successful.

DUFFLES FOR KIDS:
Did you read our prior post this weekend? Did you donate to help buy a foster child a duffle bag so they don't have to move their belongings in trash bags? 
Are you closing out a case this week? A simple $20.00 donation as part of the plea would be a great thing. 

FACDL:
Congrats to Saturday night's honorees: 
Judge Milton Hirsch (The Gerald Kogan Judicial Distinction award);  Michael Matters and Scott Sakin (The Rodney Thaxton Against All Odds award); Harry Prebish Founders award to APD Appellate Ace Howard Blumberg;  and the Gregg Wenzel Young Lawyers award to Assistant Federal Public Defender Samuel Randall. 
And so another week begins. 

See you in court. 



Saturday, May 11, 2013

DUFFELS FOR KIDS

Foster children start out with more strikes against them then most of us deal with in our entire life. Imagine growing up without parents, or being taken away from your parents because of abuse and spending your childhood in a never ending succession of stranger's homes until one day you turn 18 and you are out on your own, with no support network, no family to help you, and limited job skills. 

The sadness and the indignities these kids suffer is almost unimaginable. And as these kids are uprooted and shuffled from foster home to foster home, the kids suffer one more indignity: they gather their meager belongings in a trash bag. Could there be any more sad statement about their lives then having to move the few things they own in a garbage bag? What kind of message does this send to these children? 

Someone finally said "enough". 

The Florida State  Foster/Adoptive Parents Association is organizing a "Duffles for Kids Drive". 
What a great idea! At least now when these children are forced to move to another foster home, they can gather their belongings in a duffle bag and move with a little dignity. A small gesture which will go a long way to help reinforce in these children that they are not garbage and that they mean something and have dignity. 

There is a walk to raise money next Saturday, May 18, 2013, at Parrot Jungle. 
The Herald article that brought this to our attention is here. 

But you can also go to the website here and just scroll to the bottom and click the "donate now"  button and donate through Pay Pal. 

Take a few minutes today. Spend twenty bucks. And help an innocent child. No more garbage bags for kids. These children are  not garbage and this is such a simple problem to solve. This blog gets about 3.000 hits a day. If 500 people donate 20 bucks, $10,000 dollars buys a lot of duffle bags, and more importantly sends a message to each child that despite their tough start in life, people care about them. Children aren't garbage. They shouldn't have to more their belongings in garbage bags. 

Have a good weekend. 

Thursday, May 09, 2013

ACLU AWARD FOR STEPHEN HARPER

The ACLU will be honoring former Dade PD, current FIU law professor, and all around good guy Stephen Harper Friday evening. Some details of the event are below. If we went to events (we're a notorious recluse) we would definitely go to this one. 

The Greater Miami Chapter of the ACLU of Florida invites you to celebrate Law Day and the vital career of Stephen Harper of the Miami-Dade Public Defender’s Office. Join the defenders of our Bill of Rights at ACLU’s Annual Law Day Reception

Annual Law Day Reception
Friday, May 10th, 6:00 P.M. – 8:00 P.M.
This year in the beautiful Miami Beach Botanical Garden
Our C. Clyde Atkins Civil Liberties Award will honor Stephen Harper, Clinical Professor of Law, FIU College of Law. He recently retired as Miami-Dade Public Defender and now supervises law students and lawyers on properly praparing the penalty phase of death cases throughout Florida.
Full details of the event and the award are here.  There is a phone number and email address, but we're pretty sure you can still buy a ticket at the door. 
STATE AGREES TO MOTION FOR A NEW TRIAL:
David Ovalle and the Herald have all the details here. Apparently in a trial for attempted murder of a police officer the defense originally accepted a juror but the entire jury was not yet chosen and the next day a new panel was brought down. At some later point the defense moved to strike a juror from the first panel and the court (who else but blog favourite Judge Rodriguez-Chomat?) refused and the state (Scruggs and Kulick) sided with the judge. Then after the defendant was convicted and the defense filed a motion for a new trial the state decided to read some case law. It is fairly apodictic that either side may use a strike against a juror until the panel is sworn in.  Having read the case law, the state agreed to a new trial. 
Let's just say this: there is a reason why trial judges should first have been trial lawyers.  We want- we really really want to praise the state for conceding to the motion. And yet... the thought that they opposed the strike at the time...it just bothers us so much, that we can't do it. We tried, but alas we failed. 

TYPICAL FRONT RUNNING CLASSY HEAT FAN

This was the scene Wednesday night, when classy Heat fan Filomena Tobias gave the finger to Joakim Noah. 
Now here is the best part of this story:
Filomena (Phyllis to her close friends) is described by the Herald here thusly: Filomena Tobias, a Porsche-loving Palm Beach socialite once accused of drowning her wealthy husband, is the rabid middle-finger-flipping Miami Heat fan...Her back-story reads like a Jackie Collins novel: Jersey-born secretary, married money, divorced three times, accused by a gay stripper named “Tiger” of kidnapping. She later hired a 300-pound psychic who would claim Tobias had confessed to drugging and drowning her fourth husband, CNBC commentator Seth Tobias.

Read more here: http://www.miamiherald.com/2013/05/09/3389653/palm-beach-heat-fan-who-gave-the.html#storylink=cpy
Who could make this stuff up? Wouldn't a psychic (off all people) know what they're eating would make them fat? And would Jersey take her back? We could trade her and Governor Scott for Governor Christie and a bimbo to be named later. And while we're at it, just what does everyone's favourite "middle finger frowning" Judge Rodriguez-Chomat have to say about the actions of Phyllis? He's handled cases like this before. 
Typical Heat fan. 
You can have them. 
See You In Court. 

Read more here: http://www.miamiherald.com/2013/05/09/3389653/palm-beach-heat-fan-who-gave-the.html#storylink=cpy

IF YOU CAN'T STAND THE HEAT.....

Heat fan said...1-1.

What is Rumpole going to say today about his beloved team to hate. We're the Heat actually winning that game by 46 points at one point. Ah, yes they were Horace

Did the Heat actually go on a 62-20 run in the middle of the game. Ah, yes they did Horace.


Was that the worst lose in Chicago Bulls Playoff History. Ah, yes it was Horace.


And how did the spoiled rotten Heaters handle the win after the game. With class. They said it was just one win and that it meant nothing if they don't win in Chicago.


But Rumpole will stay in hibernation until the Heat lose another game.

Five down, eleven to go. Word.
Heat fan
Thursday, May 09, 2013 1:23:00 AM

Rumpole responds:



In 1960 the mighty NY Yankees played the lowly Pittsburgh Pirates in the world series. Here were the scores:

The Yankees won Game 2:16-3 and Game 3: 10-0 and Game 6: 12-0.
The Yankees had Yogi Berra and Mickey Mantel and Roger Maris and Whitey Ford and Elston Howard.

The Pirates won their games 6-4, 3-2, 5-2, before winning the classic 7th game 10-9 on Bill Mazeroski's famous walk off bottom of the 9th homer.

The Bronx Bombers outscored the Pirates 55–27,  outhit them 91–60, out batted them .338 to .256, hit 10 home runs to Pittsburgh's four (three of the latter's coming in Game 7), got two complete-game shutouts from Whitey Ford—and lost.

Maz and Clemente were the only stars and hall of famers on that 60 Bucs team, although reliever Elroy Face should be in the hall, as should be Bill Virdon.

But one team had heart and played like a champion against another team's arrogant bunch of superstars.

You front running Heat fans make us ill. We don't recall all of this love for the team when Bimbo Coles and Rony Seikaly were playing for the team. The Chicago Cubs sell out almost every game and ask Judge Hirsch the last time they won  the world series. Dolphin stadium was empty last year and when LeBron James and Dwaye Wade decide to take their talent to LA and play with Koby, the AA arena will be empty again but you all have no heart and no character and no ability to root for a team win or lose. You only show up when they win (perhaps Judge Colodny can be excepted from this rant, she appears to be a true fan.)

So go dance and shout and celebrate your wonderful Heat. Just like you all did when the Marlins won the world series. You remember the Marlins, right? You can walk to the stadium from the courthouse and walk right in to any game because the ball park is empty.

Front running phonies. 

FYI: The 1960 world series contains a great trivia question and answer: the only MVP in a world series on a losing team: Bobby Richardson for the Yankees. 
Yogi was quoted afterwards, as only Yogi could, as saying “We made too many wrong mistakes.” 
This was also Casey Stengal, the manager of the Yankees, last world series and the last game he managed for the Yankees. Stengal was quoted as saying “I’ll never make the mistake of turning 70 again.” 

Wednesday, May 08, 2013

LSA

Miami Dade ASA Caycie Blake Flitman was arrested on Tuesday for Leaving the Scene Of An Accident. 

The Herald article is here.


Expectorating in Public:
Expectorating in public is a crime. 
Expectorating on a prosecutor is shameful and should not be tolerated in any manner or celebrated in any way. 

It doesn't matter who the prosecutor is or what the case is about. No attorney should be subject to such an indignity. The whole reason why we have courts is because we have developed civilized means and methods for resolving disputes. 

The Herald article on the spitting incident is here and we hope the legal community turns out in force to condemn this disgusting incident. 

See You In Court. 

NIXON RESIGNS REDUX


The FACDL celebrates 50 years this Saturday night with it's annual banquet.  And when banquet time comes, so comes the changing of the guard. A new FACDL President comes in, and the old one leaves. 
For those of you who do not remember a world without Starbucks, you might want to ask some of your older colleagues who Daniel Pearson or Harry Prebish was.  It might surprise you to learn that criminal defense attorneys were standing up for the accused well before there were cell phones or computers or cafe lattes. 




Dear Membership:
Once again I find myself  breaking listserv etiquette and begging the Membership’s indulgence as I take this executive privilege to offer a farewell from my position as President of FACDL-Miami.
Ideally, I would like to take a page from one our past presidents, Judge Hirsch, and eloquently quote Shakespeare, or at the very least select a poignant and apropos quote from Lincoln. Sadly, I have resigned myself to the fact that the more appropriate quote is from one of Lincoln’s significantly more mediocre successors. So, much like Ulysses S. Grant, I leave the presidency assuring all that “my failures have been in judgment, and not of intent.”
While there were many challenges this year and I often found myself chasing accomplishments on an ever-moving horizon, it was absolutely a fulfilling pursuit. I entered this office with one paramount and all consuming goal- to build upon the success of my predecessors, and leave this organization stronger, and more influential, than I accepted it. I don’t presume to offer an opinion on whether I was successful in this endeavor; I will leave that assessment to the talk in the halls and the posts on the blog. I will, however, say that it has been my great pleasure and my great honor to lead this organization.
I thank my Board for all of their hard work, and I thank the membership for their continued dedication to our chosen and important profession. I look forward to seeing you all a week from tomorrow at the 50th Anniversary Banquet where I will officially hand the reins over to my deserving and capable successor, Eddie Pereira. Thank you again.  
Very Truly Yours, 
Jude M. Faccidomo, Esquire
FACDL-Miami, President


Well said and well done Mr. Faccidomo. 
As Judge Hirsch might have said:
"Leave them wanting more."
P.T.Barnum. 

Monday, May 06, 2013

YES MIAMI IS WEIRD

Very quietly (or at least as quietly as anything Mr. Black does) this past Friday Roy Black had a motion for a new trial granted for juror misconduct in the John  Goodman DUI Manslaughter case in West Palm Beach.  The Palm Beach Post article is here. 

Never at a loss for words, Mr. Black was quoted as saying thus:
"A juror who deceives to get on a jury in a high profile case for his own profit is a trial lawyer’s worst nightmare."

Actually, in our opinion a confession, DNA, a videotape and a Nun as a witness is a trial lawyer's worst nightmare. But we get his point. 

Here's a good little list of why Miami is the weirdest city in the US. 

What's the buzz about judges becoming more active in ordering defendants who are out on bond to submit to urine drug tests when they appear in court? Memo to the Judge(s): google "probable cause". Just a tip from your friendly neighborhood blogger. 

Another week begins as the prospect of a long, hot summer becomes more and more a reality. But there's a few nice stops along the way, including the FACDL's 50th Anniversary banquet this Saturday. More on this later in week. 

Until then, see you in court. 

Friday, May 03, 2013

SEARCH AND SEIZURE



The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.     Fourth Amendment to the Constitution.

Which leads us to the following age-old question:

Can a police officer take my cell phone and look at naked pictures of my girlfriend?

Not anymore.  Well, not without a warrant.  So said the Florida Supreme Court yesterday with their decision in Smallwood.  Smallwood v. State of Florida. (SC11-1130, May 2, 2013).

Here is the link to the text of the decision: http://www.floridasupremecourt.org/decisions/2013/sc11-1130.pdf

Smallwood was a small time robber who apparently hit it big with an alleged armed robbery of a convenience store in Jacksonville, Florida.  The day after the robbery, the police issued an Arrest Warrant for Smallwood.  Eleven days after the robbery, the police arrested Smallwood and confiscated his property, including his cell phone.  (The cell phone was NOT listed on the property receipt).  Thirteen months later, and on the eve of trial, the arresting officer told the trial prosecutor about the cell phone for the first time.  The officer had accessed the contents on the phone and discovered five photos that he thought could be related directly to the crime charged.  The prosecutor sought to use these photos in the trial and the defense objected to the admission of the photos found on the phone. (The prosecutor had actually obtained a search warrant before seeking to use the photos at trial).

Defense counsel filed a Motion To Suppress which was heard by the trial court judge. The defense argued that Smallwood had a reasonable expectation of privacy in the data and information stored within his mini-computer cell phone.  "During a hearing on the motion, defense counsel reiterated that people have an expectation of privacy in their technologically advanced phones, which are small electronic data sources, and that the Officer's search of the cell phone, data, and images constituted an invasion of that constitutional zone of privacy. "

The trial court denied the motion to suppress, specifically relying upon the decision in New York v. Belton, 453 U.S. 454, 460-61 (1981).  Smallwood was convicted.

On appeal, the First District Court of Appeal Affirmed.  "In rejecting Smallwood’s Fourth Amendment challenge, the district court relied upon United States v. Robinson, 414 U.S. 218 (1973), in which the United States Supreme Court held that the search-incident-to-arrest warrant exception permits a search and inspection of the contents of personal items found on the arrestee, even if it is unlikely that the arrestee has a weapon or evidence related to the crime on his person."

Despite affirming the trial court's decision on the admissibility of the cell phone images, the First District expressed great concern about its ruling and in light of those concerns, they certified a question to the Florida Supreme Court as one addressing a matter of great public importance.

Justice Lewis, writing for a 5-2 majority, quashed the decision of the First District.  Canady wrote a dissent with Polston joining.

In reversing the lower court, Lewis wrote: 

" ... the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone. "

The court went on to state that, "the United States Supreme Court has not addressed the constitutionality of cell phone searches under the search-incident-to-arrest warrant exception."

"We have carefully reviewed and considered the decisional law that addresses this unresolved Fourth Amendment issue, and we conclude that the line of cases requiring law enforcement to obtain a search warrant before accessing the data, information, and content of an electronic device cell phone that is removed from a defendant at the time of arrest is, quite simply, more persuasive. "

Finally, in responding to the Canady dissent, which asserted that the majority decision had "the potential to work much mischief in Fourth Amendment law," Lewis wrote:  "Our decision actually protects the Fourth Amendment and United States Supreme Court precedent by ensuring that the exceptions to the warrant requirement remain "jealously and carefully drawn," and by mandating that there be "a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative."
Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971).

On that final note, Fox News contributor, former Judge Andrew Napolitano, wrote a must read piece yesterday he called: "Poking holes in the Fourth Amendment to let government snoop on you".  You can read that at: http://www.foxnews.com/opinion/2013/05/02/more-holes-in-fourth-amendment/#ixzz2SGreZ1tI


In the words of our Executive Editor and Blog Chief, Horace Rumpole: Here's seeing you in Court.  I'll be the one with the double encrypted password protected Samsung Galaxy S4.


Enjoy your sunny South Florida weekend.

CAPTAIN OUT ......
captain4justice@gmail.com
 

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.