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

Tuesday, January 07, 2014

ARTHUR HEARINGS UNDER ATTACK


UPDATE: Miami Dade killer Thomas Knight was executed by the State of Florida at 6:45 pm Tuesday evening. The execution was for the death sentence Knight was under for the murder of a Corrections officer at Starke where Knight was on death row for the double murder of Sydney and Lillian Gans. Knight was working for Sydney Gans under an inmate release program in 1974 when Knight kidnapped and then executed the couple. 
David Ovalle, who witnessed the execution, posted his story here. The State spent 40 years trying to exact "justice" for the Gans double murder. Query: was justice done?

This email crossed our desk yesterday:

Has anyone else recently been told by ASA that if you proceed forward with an Arthur hearing, there will be no below guidelines plea later?

I have burg/batt case. Client is friend of victim family and visits often. He was super high on drugs, went into house and was caught stealing stuff. No priors.  Fight among three teenage boys.... all who have been friends for years.  Client then went into convulsions.

Clearly, a judge would grant a bond but, ASA threw that bombshell at me.

Anyone been down this road?

Rumpole replies: Yes, we've been down this road, and let us guide you. 

We have no idea whether or not this is the new policy of the Dade SAO or some pissant ASA who is either 1) lazy; 2) trying to make a name for themselves or 3) both. 

Here is how you respond to this type of tyrannical bullying:

Dear ASA:

You informed me that if I asked for an Arthur hearing for my client for the purposes of obtaining a bond that you would, in your official capacity, retaliate against my client by refusing to ever in the future examine the merits of the case and the justice of what punishment my client deserves, and punish my client for having the temerity for seeking his rights under the constitutions of the United States and Florida.  As you informed me, the punishment for seeking to exercise his right to bond would be that you would NEVER offer a below guidelines plea regardless of how the facts in this case are developed through discovery and whether justice would require a below guidelines plea.  

Good for you. 

Could you please respond in writing confirming that it is your policy, and your office's policy, to punish defendants who exercise their constitutional rights? While we are at it, besides your office exacting punishment for a defendant seeking bond, are there any other exercises of constitutional rights that your office has decided merits punishment?  For instance, will asking for discovery trigger an increase in the offer? Will taking depositions trigger a larger increase in the offer? Will demanding a trial by jury trigger a decision by your office to seek the maximum allowable punishment under Florida Law? Is there a part of your office's website that conveniently lists the "triggers" and corresponding punishments? 

Are you proud of your role in punishing defendants for the exercise of their constitutional rights? Did they recently change the oath you take as a prosecutor, changing the requirement of protecting the constitution and constitutional rights to suppressing those rights that you find personally troubling or time consuming? 

I am assuming that the punishment for asking for an Arthur hearing includes the blanket refusal by your office to ever drop charges even in the event my client turns out to be innocent. Clearly a dismissal would be a below guidelines result. 

I await your response. 

Yours, etc.
__________
Your name Here, Esq. 

Any input from the FACDL (besides their annual dues bill)? 

The point here is to never, ever, ever back down when a prosecutor threatens your client for exercising a right under the constitution.  The remedy is to embarrass them. Make them say it in open court on the record. Ask in writing that they confirm the conversation-threat. If they don't think there is anything wrong with their policy, why shouldn't they proudly announce it on the record and in writing?  That the Dade SAO continually seeks to play these types of games is troubling. 

"The only thing necessary for evil to flourish is for good men to do nothing."
Edmund Burke. 

See you in court. 


54 comments:

Anonymous said...

LOL. Amusing letter. There's nothing wrong with an ASA telling a defense attorney that they won't offer anything if the case proceeds to an Arthur Hearing. But, I appreciate your sanctimonious response.

LOL

Rumpole said...

There is everything wrong with a prosecutor threatening a defendant who exercises a constitutional right. Wait until it happens to you. Not as an attorney. As a defendant. Then LOL.

Anonymous said...

Rump - it comes down to laziness. That's all.

You think the cops don't mind coming in and banging out some court time? The victims don't even have to appear, the ASA just has to get an affidavit from them. So no argument about how testifying will be traumatic and inconvenient for the victim This, I understand, takes a little time and effort and follow-up.

But it just comes down to the fact that an afternoon Arthur Hearing means the ASA can't run to Merrick Park for the after christmas clearance sale on her 3 hour lunch break.

Defense Attorney said...

BRAVO!

Anonymous said...

If you do not like the ASA, wait 3-6 months and they will change. I remember being pissed at a defendant for fucking with a witness in a case inappropriately and sticking my feet in the sand on a plea offer to his lawyer - he was an experienced defense lawyer.

Guy looked at me, smiled nicely, laughed, gently put his arm on my shoulder and walked away.

After I transferred out of division, guy got plea he wanted for client from lazy ass ASA that followed me in and totally ignored by "do not plea below..." on file in red.

It is like the old saying about the weather...if you don't like the ASA, wait 10 minutes and she will be gone.

Anonymous said...

That was an excellent letter, Rump. Nicely done. Very, very nice.

Anonymous said...

well said rump; 8:16 and that prosecutor will never understand

Anonymous said...

That was an excellent way to start the new year!

Anonymous said...

Make that ASA work.

Anonymous said...

Blah, blah, blah. People negotiate their constitutional rights away in court every time they take a plea Rump, so save my the self-righteousness. There's nothing morally or ethically wrong with what the prosecutor did. And, there are a whole host of good reasons to do it (ie. save time, prevent the officer from having to go through multiple cross examinations, etc.) as you well know.

Anonymous said...

8:16 is probably the ASA referenced in the Arthur Hearing email. You should be ashamed of yourself. Your entire office should be ashamed.

Anonymous said...

Perfect! For extra fun cc: KFR.

Of course - I recall a certain judge telling us (the APD and I) "I do not have time to listen to you two argue the Constitution during my Arraignment Calendar"








Anonymous said...

Former ASA here:

Certainly, there is no right to a below guidelines plea offer, so you can lose something you never had in the first place. And yes, the ASA has the right to not offer a below guidelines plea.

That being said, I would still move forward on the Arthur hearing. First, it may mean your client actually gets out to fight his case. Second, the ASA will either forget, not care or transfer out before the case resolves a year later.

I used to say this to defense attorneys all the time and got called by most of them. The only time I would really stick to it is if it was a child victim case.

Anonymous said...

OK smart guys, I am the defense attorney on that case and I must wonder out loud.

What if I go forward, get a bond, and months later, ASA will not agree to anything below guidelines and bottom is about 5 years in prison?

Now what?

Anonymous said...

Alex Michaels said: This is bullsheet. We must take over the building and teach them a lesson!

Anonymous said...

I was an ASA for many years until recently and I can tell you it IS thier unofficial policy to pull the plea after an Arthur hearing- and there is nothing unethical about it. Although it may seem like the state is bullying defendants or infringing on thier right, the winning argument made by the State is about judicial efficiency.
A primary function of every ASA is to manage the size of thier caseload- and the only way to do this is to close cases- clearly they must incentivize accepting a plea offer before conducting a full blown Arthur hearing- which can be just as detailed and take just as long as a jury trial.

George Frobisher said...

Power concedes nothing without a demand. - Frederick Douglass

Anonymous said...

Would you offer an equally forceful argument against an implication that an ASA would not recommend a below guidelines sentence at a sentencing hearing if a defendant exercised his Constitutional right to trial? Or, stated differently, if the ASA offered to waive guidelines in exchange for the defendant giving up his Constitutional right to trial? I rather suspect you wouldn't.

Juniper said...

Awesome sauce. The "person" in 8:16 needs to go crawl back under his/her rock. I concur with Rumpole. Public embarrassment ON THE RECORD is the way to go.

Anonymous said...

What's an Arthur hearing?

Rumpole said...

The conserving judicial resources argument is, to quote Vincent Dellaguardia, Bullshit. The Supreme Court has said you cannot punish a defendant for going to trial. These are people's lives. If you're going to have spirit crushing minimum mandatory sentences then do the fucking work and don't compain about wasting resources.

Anonymous said...

It's early in 2014 and Rumpole's panties are already in a bunch. We are in for a great year.

Anonymous said...

This discussion is ridiculous. Everyone here knows that defendants routinely get far better deals in Miami than they deserve (and far lower sentences than anywhere else in the state).

There's nothing wrong with what the prosecutor did. And, there's nothing wrong with asking for more prison time after trial SO LONG AS THE REQUEST IS FAIR.

Rumpole said...

Really? Try getting your head out of your ass and reading some case law:

""We also recognize that the constitutional right at issue in this case is not the defendant's right to appeal his conviction or sentence but, rather, the defendant's constitutional right to a jury trial. 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. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).” City of Daytona Beach v. Del Percio, 476 So.2d 197, 205 (Fla.1985) (quoting Gillman v. State, 373 So.2d 935, 938 (Fla. 2d DCA 1979)). Therefore, although a guilty plea may justify leniency, see Smith, 490 U.S. at 802, 109 S.Ct. 2201, an “accused may not be subjected to more severe punishment for exercising ... [the] constitutional right to stand trial.” Mitchell v. State, 521 So.2d 185, 187 (Fla. 4th DCA 1988)."

Wilson v. State, 845 So. 2d 142, 150 (Fla. 2003)

What say you now?

Anonymous said...

rumpole dropping f bombs ?

Anonymous said...

I too was an ASA in Miami, but apparently I missed the memo to hold defendant's to account for asking for an Arthur Hearing. Certainly, the ASA's who wished to look tough, or hard, or something that was ultimately unprofessional and usually immature, would speak of taking all offers off the table if the defense moved for an Arthur Hearing.
Human nature being what it is, however, there are times when an Arthur Hearing may cause an ASA to either learn enough about the case to get interested or even invested in it. But with dozens of first and second degree felonies to deal with, having a specific case stand out can make it suddenly more important, so, while getting your guy out is a number one priority, sometimes timing is important.
To say that the preparation for Arthur Hearing is tantamount to trial prep is silly. The ASA will, if he is smart, write a couple of affidavits, get the witnesses to sign them, call the officer to ID the defendant and argue that he has proof evident presumption great (a legal fiction if there ever was one). Back when Hague did all AHs you pretty much knew where it would land anyway. Now I suppose it's a bit more of a crap shoot, but it's still a long way from a real trial prep, and the close cases are no doubt the ones where the defendant deserves a one in the United States of America. I've never seen a truly dangerous person prevail in AH.
I would never have the temerity to tell a defense attorney that I would rescind or refuse to offer a fair plea if his guy asked for an AH because it is unethical, and pretty smarmy when you get right down to it.
As I was told when I was interviewing for the position of ASA (something I have always been proud that I was able to do) I was assured by Kathy Hogue and KFR that I would be wearing the white hat. I took that to heart, and tried my best to never forget that there was a human being on the other side of a prison sentence. Likewise, the people whom I was friends with int he office, many of whom I remain friends with to this day, felt the same.

Rollo Tamasi said...

In what world does a defendant have a "right" to a below guidelines plea offer? A below guidelines plea is the product of negotiation, a benefit or bargain the parties deem in their interests. Failing to get the benefit is not the same as being penalized, its called facing the law.

I fail to see how there can be a Fifth Amendment violation for simply recommending that the Court uphold the statutory guidelines.

Anonymous said...

Sigh. You know what I mean Rump. As I said, the final recommendation has to be fair. The ASAs who are doing this properly are not punishing people for exercising their rights, but rewarding people who express remorse, take responsibility for their actions, and taking a plea (or forego hearings) early on (which saves judicial resources).

As you said, read the case law. There's nothing wrong with this.

Anonymous said...

If you have something to say to me, send me an email.

Off With Their Heads said...

Start a thread about Judges who are up and need to go, and why. No ad hominem attacks on hairstyles. Just the facts about why they need to be replaced.

Anonymous said...

4:14 "A primary function of every ASA is to manage the size of their caseload" ???
Wow.
Are you serious? You really believe this is a primary function?
Our society really is screwed.

CAPTAIN JUSTICE said...


The Captain Reports:

"I’ve seen grit overcome paralysis." Gabrielle "Gaby" Giffords.

And former Congresswoman Giffords was not just discussing her personal struggles with recovery today, in her Op Ed, in the NY Times, but the paralysis that exists inside the beltway when it comes to passing any meaningful legislation when it comes to those two dirty words; "gun control".

"TODAY, the anniversary of the shooting in Tucson that put a bullet through my head and killed six of my constituents, is when I make my annual resolutions.

Many may look at me and see mostly what I have lost. I struggle to speak, my eyesight’s not great, my right arm and leg are paralyzed, and I left a job I loved representing southern Arizona in Congress.

But three years ago, dispatched to an almost certain death by an assassin’s bullet, I was allowed the opportunity for a new life. I had planned to spend my 40s continuing my public service and starting a family. I thought that by fighting for the people I cared about and loving those close to me, I could leave the world a better place. And that would be enough."

Read the entire Op Ed here:

http://www.nytimes.com/
2014/01/08/opinion/
gabrielle-giffordss-
call-for-persistence-
on-gun-reform.html?nl=todaysheadlines&
emc=edit_th_20140108&_r=0

Cap Out ....

Anonymous said...

It was such a great holiday season and then a really good new year. And then the Captain.....

CAPTAIN JUSTICE said...


And a very happy new year to you 11:56 AM.

Now, for those who take the issue of guns and gun control seriously, please consider reading Ms. Giffords moving Op Ed.

As for you, 11:56 AM, here is something clearly more appropriate for you:

http://www.cesarsway.com/
heartworm-awareness/
Symptoms-of-Worms-in-Dogs

Cap Out ....

Anonymous said...

Bu Yah Cap. Touché. Now do what you can to post the races for judge.

Anonymous said...

Some of the responses here confirm why the State Attorney's Office -- a law office no less -- has to have a department called "legal." Holy shit, you people are scary.

Anonymous said...

What the hail is an Arthur hearing!

Anonymous said...

This is yet another situation where the State takes advantage of our clients to force pleas.

Does guilt of innocence have anything to do with that policy?

Is this all a game of forcing people to take pleas?

To me, that policy is simply rude and offensive.

Anonymous said...

An Arthur hearing is where the proof is evident and the presentation is sometimes great!

Anonymous said...

What's "guilt of innocence"?

Juniper said...

Its blackmail, plain and simple. The prosecutor is saying that if you make him/her do work, he/she will take it out on your client's hide. Given that sometimes even people who are innocent will do anything to get out of custody sooner, its a reprehensible practice.

Anonymous said...

2:05, you obviously don't know anything about the SAO. Legal is USELESS and GOOD FOR NOTHING when they bother to show up.

Rumpole said...

"Remains of the Day" is one of those superb Novels that is equally, astoundingly good as a movie. The only problem with the success of the movie is that less people read what is a truly remarkable novel.

Anonymous said...

Stay in county court- adjudication withhold plus court costs.

Anonymous said...

Rump- I picture you being like the husbands attorney in the movie Kramer v Kramer ! What a lawyer!

Anonymous said...

An important note about the State's DUI diversion program, also know as the lamely named "Back On Track" program:

The SAO has apparently bought into MADD's thinly veiled effort to kill the program by making the conditions so onerous that only the most desperate, or those with the least competent attorneys, would even consider accepting the program. New conditions starting January 1 require Tier 1 defendants to wear a SCRAM bracelet for 3 months or have an ignition interlock device placed on their car for 6 months, in addition to all of the other penalties. Tier 2 defendants get their Hobson's choice of 6 months of a SCRAM bracelet or 1 year of the interlock device. Sorry folks, but I think I am going to end up advising most of my clients to decline BOT and take their chance at trial. What say you Rump?

Anonymous said...

F...ing perfect!!! I'm.actually gonna copy and save this one for a boiler plate response. Awesome. Lol

Anonymous said...

This asa is probably an idiot. Arthur hearings do more to resolve cases than any other proceeding. The hearing allows both the victims and defendants to see the weaknesses or strenghts of the case live and allows everyone to have their day in court. Part of the problem with the situation we are discussing is that there is no firm offer or commitment on the table. The state should make a firm offer or be ignored, they don't even promise to go below the guidelines if the defense foregoes the hearing. You can blowoff the hearing and still get a stiff offer.

Anonymous said...

"who attended the execution with Miami-Dade prosecutor Gail Levine.


Does anybody else think it is weird that the ASA would attend. Why would she?

Anonymous said...

1-10-14 Well.it's been a month----and I really am missing you. Yeh,I know, we never talked this way, even though we spoke of everything. I remember Joey from the North End and Johnny Boy from Camp Whatchamacallit. We traded our stories about the old gangs-----must have sounded like Clemenza and Tessio. Man, I just admired your storytelling. Heck, I admired everything you did in public. So damn assured and funny. I know we both believed the worst thing was to laugh alone. It was the aloneness,wasn't it? Nobody would talk about it.The way you ended it. Crazy,but I even admired that.Since they could not latch on to how you did living,why should we expect------well, you know. I guess I'm just feeling sorry for myself. Your Pal.

Anonymous said...

LOL 12:00 am. Interlock isn't a big deal. Hell of a lot better than a conviction that stays on your client's record forever. Of course if you have a good defensible case, you know what to do.........

Anonymous said...

Actually, it is now SCRAM only with no drinking at all for the entire term of the program and no interlock ... in most cases I will be advising my clients to "just say no".

Anonymous said...

I found Thursday January 9th at 2:31 poignant,beautiful and disturbing with a tear in my eye.

Anonymous said...

punishing one for exercising a right is unconstitutional and is called "the chilling affect". also get any plea deals on the record with judge involved, then if you decide to exercise your right to a trial, the judge/state cannot give you more time than was offered at your pretrial. also known as vindictive prosecution. research case lase in your state.