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

Monday, June 09, 2014

FORMER OFFICER DERICK KULIAN GUILTY OF RECKLESS DRIVING WITH SERIOUS INJURY

A dade jury acquitted former Miami Beach officer Derick Kulian of DUI- serious bodily injury. However, the jury found Kulian guilty of Reckless Driving serious bodily injury, a third degree felony. 

In a move we greatly disapprove of, Judge Tinkler-Mendez took Officer Kulian into custody after the verdict. 

He was going to run? 

While we greatly respect Judge Tinkler-Mendez, this business of immediately incarcerating defendants after a verdict is just another part of the trial tax that prosecutors seek and judges impose. Motions for new trial, motion for bond pending appeal, and a possible non-prison sentence are all reasons why Mr. Kulian should not have been immediately taken into custody. It's as if the prosecution cannot wait to start punishing a defendant, who based on the results, apparently had good reason to take the case to trial. 

The Herald's David Ovalle has the coverage here, including ASA David Gilbert's criticism of Miami Beach cops who tried to protect their own. Say what you want about the Dade SAO, but don't accuse them of ever buckling under to police pressure. This was a courageous prosecution in the face of less than stellar police work designed to protect one of their own. 


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39 comments:

Anonymous said...

Nice Instagram selfie of officer funny face pending verdict.

Anonymous said...

It is haters like you (more probably those who are jealous of those with greater talent than you) that make Lebron play with the ferocity that he does. Your posts don't mention that Lebron wanted to play in the last 2 minutes of Game 1, and Spols would not let him. But, of course, the facts don't matter to you. In this way, as it relates to Lebron, you are as bad as FOX News.

Anonymous said...

I am fine with it and I hope the judge gives him the full 5 years.

Anonymous said...

Tom Durkin vs. Judge Posner was good stuff today. A true lion of the Chicago defense bar up against the giant of the 7th Circuit in a case of national implications. Durkin would not let Posner intimidate him.

Anonymous said...

Why shouldn't he be taken into custody? If he was the average joe represented by the PD he would have been taken into custody. Of course he has an incentive to run away if he is facing prison. I'm not sure what he scores, but I'm sure the injury adds some points to his score sheet. He deserves prison and should go to prison. The fact that he was taking pictures during the trial should be brought up to Tink's attention too. This a-hole obviously thinks he did nothing wrong. Typical Miami scumbag cop...

Rumpole said...

I don't think average joe PD clients with little or no priors on cases like this should be taken into custody either.
You really think this guy has the resources to run for the rest of his life? It's a trial tax pure and simple. Punitive for having the balls to go to trial. I don't like what this former cop did. But really. 364 and 4 years probation is sufficient. He was acquitted of felony DUI. HIs GL are not going to be high.

Anonymous said...

Perp walk for sure for tribe lawyer today in federal court ! My money is on the justice building alum Cali over the fancy law firm lawyers .

Anonymous said...

Last guy who hit a cop and was also convicted of many but, not all charges got a bond on appeal and it took 10 years to find him...

Anonymous said...

Bullshit....he permanently maimed the woman, he thinks he is above the law, he is a danger and he and other cops should know that when they break the law, they are toast. five years is not enough. His defense lawyer deserves a lot of credit for bearing the dui.

Rumpole said...

He thinks he is above the law? How so? he was arrested and tried and convicted.

5 years is not enough? For one bad mistake in judgment? Really? For not living a life of crime, but for a first conviction, five years is not enough? Go spend a day in jail and then tell me 5 years is not enough.

It is madness the way we incarcerate our citizens. No other civilized country on earth does what we do to our citizens.

Six months in jail and probation and a life time of being a convicted felon and loss of his career is more than enough punishment for a few moments of bad judgment.

Q's conscience said...

Rumpole is more than correct. Under any view of this case, his actions were negligent not intentional. Are we really worried he is going to get another ATV and go for another ride on the beach?

I think he has been punished enough. Sending him to prison will not heal the woman injured, it will not deter other police officers, this was just a brain freeze moment. A moment of stupidity. A moment that a young man, probably too immature to be a police officer, made a bad decision in the company of beautiful ladies that he was showing off for. He wasn't the first to do that and he certainly won't be the last.
Prison is ridiculous in this case.

Anonymous said...

Really Rumpole? Everyone who has ever worked in REG knows that the Beach cops are the most notorious for improper behavior and that they truly believe that they are above the law. Just look at the Instagram picture he took and posted in the hallway of the courthouse while waiting for the verdict. If I were the prosecutor, I would blow it up and MAKE SURE that Tink saw it regardless of whether I was reprimanded by the court for doing so. The guy deserves every single day in prison that the law will allow.

And to answer your question posed to the other poster, yes, any other defendant would have been taken into custody as well. Every judge in the courthouse would have done the same. I like most of what you post but your blind true believer side came out on that one.

Rumpole said...

Part of being a judge is looking beyond the stupid things people do in times of stress. You don't sentence a human being to prison because of a stupid picture. That is an emotional response that only hotheads respond to. I am sure Tink wouldn't make a sentencing decision on that.
And you don't sentence this man for the sins of an entire department. And yes I do agree the Beach cops are some of the worst and most brutal and violent cops we have in Miami. You sentence a person based on the facts and their history. How much more punishment does he need ? This isn't a drug dealer who hurt society in general. This is a young man who acted irresponsibly and hurt two people. Let's be reasonable here. The thirst for five years is not because of him. Be honest. It's the thrill of finally nabbing a cop. And the sad part is this event wasn't even part of the kind of dirty stuff beach cops do. Of he was convicted of felony battery of. Suspect In custody you're damn right I would give him five years. But not for this.

Literati said...

No offense 6/9 @ 11:31 PM but Durkin comes off belligerent and raving. He had good moments, but he did his client a serious disservice by focusing on social issues instead of the case before the court. This is especially true since his client prevailed below and had a chance to win on appeal. The fact that he considered Posner's tone "hostile" is baffling. I've heard much worse. And Posner, in specific, has had much more hostile exchanges.

Anonymous said...

Rumpole, this is is not the first you sympathize with a cop in trouble with the law. This guy was a LAW ENFORCEMENT OFFICER. He is supposed to know the laws and he is supposed to know what is wrong and what is right, and what he can and cannot do as a LAW ENFORCEMENT OFFICER. It is true that we all make mistakes, but we are not talking about the type of mistake that can be corrected without altering the normal course of life. We are talking about decisions that impacted other people's lives. We don't want our officers to think they are above the law while on duty, taking people for a ride and drinking while enforcing the law.

He should be held to a different and higher standard because he is a LAW ENFORCEMENT OFFICER and he was trusted to ENFORCE THE LAWS. Perhaps there should be a change in the law and add some enhancement for those officers who have "one bad mistake in judgment." Really Rumpole? all it takes is one mistake to ruin somebody else's life. Do you really think he should get a free jail card? Because he made one mistake? Geez! I need to start using that line when my clients are facing sentencing - "Your Honor, is his first mistake, he drank alcohol for the first time, got behind the wheel and hit someone badly, but he won't do it again, let him go."

There should be zero tolerance for those in a position of "power" when they break the law. Like the old say goes "you do the crime, you do the time."

Anonymous said...

Year and a day in prison, 3 years reporting probation. A simple and fair sentence methinks.

Anonymous said...

I disagree that taking him into custody was a trial tax. If she gives him a max sentence or anything significantly above the guidelines, then I'd agree that he's being hit with a trial tax. I think he was taken in for various reasons, one being that he was convicted and is likely to serve time. Another likely reason is that he benefitted from preferential treatment from his peers, and Judge Tinkler-Mendez was not about to continue down that path. All credit to his attorney for what had to be a good defense, but you can't ignore the fact that his blood-alcohol level was significantly lower due to the 5-hour time lapse between the incident and the time his blood was drawn. That wouldn't have happened with any of our clients. Two people's lives were forever changed because this man broke the law. I don't feel sorry for him.

Anonymous said...

Unfortunately, the media is watching and judges need to be re-elected. Less than the max and the judge will be perceived (by the media that helps to effectuate a misinformed society) as pandering to a police officer. If she sentences too harshly she may be perceived as punishing him for being a cop.

Realistically, in this case, the fact that he was a law enforcement officer in uniform distinguishes him from you or I making a foolish decision. He should be punished more harshly because of the trust the public had in him due to his profession and how his actions betrayed that trust and the responsibility he had. It's why public corruption is treated more severely than regular private citizen corruption.

Secondly, his actions caused very serious injury to an innocent person whose life will never be the same. This isn't a rear-end crash that caused whiplash and an overnight hospital stay. This was very serious and the victim injury should be taken into account.

I don't know what the offer was before trial, but as you know, most police officers, even those offered probation or even withholds, do not take pleas because of the effect that has on their ability to rejoin law enforcement.

If anything I'm glad that David Gilbert commented on the actions taken by the Miami Beach Police Department to cover up, or at least assist their fellow officer. Not taking blood for 5 hours? You know they were trying to give him some time to metabolize the alcohol. Even then, his BAC was over a .08. While he was acquitted of DUI, and rightfully so based on the evidence, we can deduce in the court of public opinion - although not prove beyond a reasonable doubt in the court of law - that he was, at the very least, effected by alcohol when he made the decision to take that girl on an ATV ride.

But we have all made poor decisions. Some of us have made extremely poor decisions. We have all - every single one of us, from judges, to prosecutors, to defense attorneys - driven at some point in our lives after we had had too much to drink. Should that one poor decision, if God forbid it resulted in an injury to another, have our lives completely destroyed? This guy Kuilan may have been a decent person. I'm sure that as a police officer he did a lot of good. He will become a convicted felon and he will never be a police officer ever again. He's lost his reputation and career, a fate to which many of us can attest is worse than a period of temporary incarceration.

He will be lucky to snag some piece of shit rent-a-cop job, guarding a parking lot for $8 an hour under the table since he probably can't get a security license with a felony conviction.

So what does the judge do? I agree that 364 followed by probation with community service, fines, restitution, etc... is fair. But what will the Herald say? Cop Convicted In Serious Accident Avoids Prison Time?

I think Derek Kuilan is going to prison.

Rumpole said...

People's lives are forever changed all the time with acts of negligence. Should that be the standard? So it's life in prison ? How about 30 or 40 years?
You're all mad.
Is prison bad?
Do why isn't a year enough? Spend a year and then tell me how fun it is and that you spent the entire time laughing and enjoying yourself. Some big party right?
Nobody says he shouldn't be punished. But if you give a 3rd degree felony with no priors 5 years after a trial- think about the precedent it sets for all your clients. People should be able to go to trial to combat the epidemic of over charging without being excessively punished for exercising their rights guaranteed under the Constitution. Be careful what you all are asking for. You may get the world you seek.

Anonymous said...

Durkin's a trial lawyer, not an appellate lawyer. He's going to lose anyway. But I agree, client may have been better served by someone else at OA. But keep in mind the appellate attorney already argued last week and the panel is considered those arguments. This show yesterday was a do-over for posterity and the reordered transcript which was inadvertently turned off last week.

Anonymous said...

I am an expert on DUI and Reckless driving and what that stupid cop did was clearly reckless driving.

He is lucky he's not going to jail for more than 5 years.

Too bad he doesn't have $3 million to give the victim like a football player....

Now, about negligence crimes vs. intentional crimes. I too think we give people way too much time for negligence crimes.

You break into my house, burn the place to the ground to cover it up, kill the dog and get probation.

You get drunk, think you are OK and kill someone by accident (yes, you could have avoided) and you get 15 years.

It's still negligence! Never once had a client intentionally get drunk and drive for the fun of it.

This is not right.
Welcome to Floridah.

Kissimmee Kid said...

After twenty-five years as a defense attorney, I don’t see a remand as a trial tax, but evidence of a consistent philosophy; innocent until proven guilty. When the jury speaks, what they say has consequences. They should see the Defendant cuffed and remanded. He is no longer innocent. He has been proven guilty.

Sure, there may be some lawyer stuff that saves this guilty man from his ultimate fate, but I have no problem with a person who has been found guilty, by evidence tested in a courtroom, spending some time in jail.

Anonymous said...

I would go with two years - for anyone else and had he not been on-duty and in uniform, I would say 364.
But, because this took place while he was supposed to be working and representing himself as a leo in uniform, I think he should be held to a higher standard. This wasn't a 'typical' joyride stupid mistake. If he weren't in uniform those girls would've told him to F-off and none of this would've happened.
But when he holds himself out as an officer he should be held to a higher standard.
And the thought of any alcohol in his system, even if not enough for the dui charge and impairment issues is very troublesome to me.

Secret Judge said...

Despite Mr. Rumpole's previous shockingly irrational opinions on Mr. Lebron James, I am compelled to agree with him that a sentence of 5 years reporting probation, special condition 364 days DCJ and an adjudication of G is sufficient to meet the ends of justice. Restitution should also be seriously considered by the Court. State prison is simply WRONG and tells us that the Judge is a politician and not a Judge.

Anonymous said...

Some of you are absolute hypocrites and whores. You just want him hammered because he played for the other team before he was arrested. Be mad about the preferential treatment he got from his buddies. But be weary of the price he pays for being found guilty of an error in judgment because next week, next month or next year you're going to be asking some judge for justice and proportionality, and you just may get the kind you asked for on here. And then you'll be sniveling as some of you are wont to do.

Anonymous said...

People are going to prison for growing weed in a room in their own home. This guy got drunk on duty and took a bachelorette for a late night drive withou his lights on. He barrels into a couple dipping their toes in the ocean and permanently injures both of them. You believe this is the same as some poor slob overdoing a friday night and getting into an accident on the way home?

Rumpole said...

K-Kid- just because someone is not remanded immediately doesn't mean they don't go to prison. It just means that the lawyer can still do their job. As much as I dislike fed court, not everyone is remanded immediately after a guilty verdict, although most get prison time. It just seems more fair and professional and less punitive.

Anonymous said...

Help. Do I need limited slip differential and a towing package ? I don't even own a boat. And what is slip differential anyway?

Anonymous said...

Towing package, no, if you're not going to tow. All that usually is a two bar (where you hook up the trailer) and light connections (for your trailer lights).

Limited Slip: Can't hurt. The basic concept is that a limited slip differential allows the torque from a wheel that is slipping (on a wet pavement for example) to be limited so that the wheel making contact (ie, not slipping) can maintain enough torque to move you forward. In older cars the harder you hit the gas, the more torque would go to the spinning wheel and you'd be screwed.

Has obvious off road and towing applications but can't hurt to have. I think it is standard in most trucks.

Used Car Kid said...

BS. You need both. You must have both to drive in Miami. Plus with our weather you need the undercoating rust prevention. Now do you want to drive off in a car today or what? Tell you what, and please don't tell my manager because I shouldn't do this but I like you , I will throw in the full set of car mats. But that's for today only. Otherwise I can't do the deal. So do we have a deal?

Anonymous said...

For Miami driving, you will also need the premium road rage package consisting of a roof-mounted instantly-deployable 10-ft tall middle finger, an automatic cusser with a 1000 watt amplifier and pre-programmed cuss words in 50 languages and dialects, and a remote-controlled six-barrel Gatling mini-gun capable of 360-degree street sweeps.

Anonymous said...

.08 five hours later? I'll assume this guy is 210 pounds. That means he's got 5 shots of Patron on board five hours AFTER he runs them over, in uniform, with a gun on his hip.

Fuck him.

Anonymous said...

Sure do wish I could listen to Locomotion while reading comments.

Anonymous said...

sitting here thinking what the net worth number is to take my talents to the circuit bench



DS said...

If we step back, look at the Judges view, She HAD to take ex-cop into custody. The Media and more importantly challengers in the next election would eat her up for NOT Taking him in. Why give a ex-Cop special treatment?
Also Rump, while I agree 364 or 366 plus probation is appropriate, why should he be treated differently than my clients, and taken in on a conviction ?

Rumpole said...

Come on you are smarter than this. We should never accept a judge doing sometnjng to a defendant because of media pressure. We expect our judges to resist that pressure and do what is right.

Anonymous said...

Many years ago, I was quoted as saying that: "Being a judge is not a popularity contest. It is about getting it right more than most of the time." I was derided and told that I was out of touch and insensitive to the "Bar Polls", which is why mine weren't very good. Judges now are more concerned with being popular and liked, than getting it right. You complain about judges who don't know or follow the law. Well, you demanded ass-kissers, and that is what you got. Enjoy!!!

DS said...

What ever we expect, we can't be like Dr. Pendergrass ( sic ?) and believe we live in the best of all possible worlds.
As Attorneys, especially Defense Attys, we need to see what really will happen, to deal w what is, what the evidence shows , what the Judge will Really Do, not what is supposed to happen in best of all possible worlds.
How many times has a client said they can't convict me on that evidence, when as an Attorney, you can see where the evidence leads or how a Judge / Jury will view the evidence?

Anonymous said...

The act of stupidity you think is worthy of so little jail time is causing a lot more than 364 days of pain and suffering. Sorry, but five years is warranted in this case. Contrary to what you suggest, it's not all about the defendant.