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

Monday, August 18, 2014

INFORMATION AND DISINFORMATION

In preparation for the battle of Midway, Admiral Nimitz had a decision to make: did his intelligence code-breakers successfully break the Japanese code and correctly discern that Midway was Japanese Admiral Yamamoto's next target? If Nimitz was correct, he could use his three remaining carriers (Halsey's Enterprise and Hornet- Fletcher's severely damaged Yorktown, nearly sunk in the battle of the Coral Sea was pressed into service and ended up playing a significant role in sinking the Japanese fleet at Midway) to ambush Yamamoto and give the Japanese their first significant naval defeat. 
However, to ambush Yamamoto, Nimitz had to leave both Hawaii and the West Coast of the United States virtually undefended. Yamamoto was betting Nimitz couldn't do that, and thus felt secure that his carriers were safe from attack. If Nimitz's intelligence was wrong and Yamamoto attacked Hawaii again or California, there were no US Carriers to stop the Japanese. 

Yamamoto had his own problems to contend with. In an era before satellites and primitive radar, he had to locate Halsey's and Fletcher's carrier groups. Yamamoto needed to know where the US Carriers were so he could send the bombers from his carriers properly armed to attach either the hardened shelters on Midway or the US Carriers. 

Nimitz was right, Yamamoto was wrong, and the Japanese lost all four of their carriers that day: the Akagi, the Kaga, the Soryu, and later -from the Yorktown and Enterprise bombers, the Hiryu. 
The Japanese would never be on the naval offensive again in the war. 

Intelligence- the ability to discern the enemy's moves and disguise your own attack and defense, has been the sine qua non of military strategy ever since Sun Tzu wrote his classic "The Art of War."

These concerns play an important part in criminal defense and modern trial strategy.  A good prosecutor spends time wondering what the defense will be. A good defense attorney (should) spend time disguising his or her defense. Sending the prosecution off on irrelevant tangents can be a valuable way to get the state to waste time and resources while allowing the defense to attack the prosecution in areas not well defended. 

Defense attorney Stan Blake did that about two decades ago when he successfully defended a murder case. The prosecutor  brought her new fangled DNA testimony to a trial only to learn that the defense was self defense. The prosecutor  spent an enormous and un-needed amount of time proving the identity of the defendant, while Blake attacked the weak spot of the prosecution. The verdict was a not guilty. 

In a lengthy trial we had last year, the prosecution intended to introduce a long deposition of our client in a civil fraud case that turned into a criminal prosecution. We knew the prosecution was expecting us to object to the introduction of the depo, and we fostered that belief by objecting to their reference to it during opening statement. We also knew that the statement was clearly an admission against interest and we couldn't keep it out. We thus spent months pulling it apart line by line, and using every good answer by our client during our cross examination of their witness. Their witness was not prepared for a detailed examination of the depo line by line, and we turned a perceived weakness into a strong point of the defense, highlighting portions of the depo during our closing. 

When you approach a trial, how much time do you spend on figuring out what the prosecution is going to say and how much time do you spend on figuring out what the prosecution thinks your defense will be?  If you can get the prosecution to incorrectly assume and prepare for a defense you will not be using, you are half way home to a not guilty. 

As Sun Tzu said, "All warfare is based on deception."

See you in court. Maybe....

25 comments:

Anonymous said...

did you just give enough information to out yourself?

Anonymous said...

Funny you mention this but, I ask jurors to call me after the trial if they want and many do. I then ask them what they "hung their hats on." It's almost always something I didn't think was significant.

Go figure.

CAPTAIN JUSTICE said...


THE CAPTAIN REPORTS:

WHAT WOULD MILT SAY .....

Judge Robert Luck is profiled by the DBR and says something that might cause Judge Milt Hirsch to have a coronary:

"After a year there, he returned to UF for law school. He was editor of the law review and graduated in the top 10 in his class.

That led to his clerking for Carnes the first time, in Montgomery, Ala. When the clerkship ended a year later, he went to work for Greenberg Traurig as an associate in the appellate section. A year later, Carnes invited Luck back as his first career law clerk.

It inspired him—to be a judge and a careful legal writer.

Carnes "was a scholar-writer among judges," Luck said. He came away with a firm belief that "lawyers and judges, both orally and when we write, should speak in a way that the everyday person can understand."

In fact, Luck expressed those thoughts in an article for Young Lawyer titled, "The Bad Habits of Legal Writers, and Why Young Lawyers Should Avoid Them" in which he admonished against over-footnoting, overcapitalization and overuse of jargon.

"Legal concepts and analysis are difficult enough for the reader to grasp without having to mine the sentence for nuggets of meaning."

You can read the entire article here:


Read more: http://www.dailybusinessreview.com/id=1202666950990/Judicial-Profile-For-Robert-Luck-Process-Happened-Quickly#ixzz3Al8TwdNl

Cap Out .....

Anonymous said...

Always do it. I stress every irrelevant thing and let the state fight it and prepare for it and then, at trial, go for a totally different defense. Works most of the time.

Juniper said...

He will win who knows when to fight and when not to fight. Sun Tzu

Anonymous said...

Dude, ixnay on the tricksbay.

No need to tip them off to one of my favorite tactics.

Anonymous said...

The Big Fromage?

CAPTAIN JUSTICE said...


THE CAPTAIN REPORTS:

EARLY VOTING CONTINUES .....

A reminder that Early Voting continues this week. The actual election date is next Tuesday, August 26, 2014.

Please exercise your right and VOTE.

Cap Out .....
Captain4Justice@gmail.com

Anonymous said...

Just did my early voting for Rachel Dooley. Time for Jackie to go.

And in the lesser of two evils vote, I decided Rudolph the Red Nosed Reindeer De La Portilla should not have his first venture into litigation be in the role of judge.

Anonymous said...

F'ing brilliant post... take into account what your opposition might say about the case. Gosh, why didn't I ever think of that? Thank you Rumpole for pointing out such an amazing way to analyze a case.

Anonymous said...

Jack Denaro in Steven Stanley was the best 1st degree murder win in South Florida history. Judge Baker was quoted as saying that he had lost his faith in the jury system. It was a double homicide. Denaro is a master of courtroom warfare. Blake was one of his students.

Anonymous said...

I think he's mocking you

Catherine Vogel said...

Disinformation is the correct title of your blog today. My name is Catherine Vogel and I never lost a murder case to Stan Blake.

Anonymous said...

I recommend we appoint Vickie Brennan to the Federal bench. Anything to get her out of that courtroom would be fine with me.

I sit there day after day amazed at how rude and offensive she can be to everyone and how much she does the State's job for them.

Anonymous said...

Sure vote for an unethical candidate instead. Taking money from opposing party you are negotiating for should get you disbarred. She did that with ultra while negotiating on our behalf. To the turn of over 2,000. When she accepted to tickets.

Anonymous said...

Catherine Vogel proves that Rumpole is Stan Blake ….

Anonymous said...

Y

Anonymous said...

Hi Cathy. You kicked my butt more than once in trial. Hope you are keeping up the good fight in Monroe County. Of course I have no doubt you are likely wearing flip flops to work.

Anonymous said...

you won my good buddy steve levine's case also. I do think you went a bit hard on d ward however.

Anonymous said...

Rump, how do you feel about the prosecution returning the favor? I figure they could turn over lots of evidence leading you to believe one theory of prosecution would be pursued and then unveil another in trial. As long as it is was all turned over, that would be fair game right?

Anonymous said...

So we have a very explicit recollection of a murder trial between Blake and Vogel. Vogel weighs in and says it never happened. That means someone made it up. Funny how the blog quickly jumps to another posting.

Hector J Lombana said...

Canons of Judicial Conduct

Canon 1. A Judge Shall Uphold the Integrity and Independence of the Judiciary

Canon 2. A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities

Canon 3. A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently

Judge Nuria Saenz has accepted a major portion of the benefits of a United Auto Insurance PAC of over $225,000 yet she is presently still sitting on approximately 297cases where United Auto is a Party, does anyone see a problem? She apparently does not

What about the thousands of United Auto Insurance cases she will preside over in Gables Branch court if she gets re-elected ?

Hector J Lombana said...

I want to make it clear that even though I resigned as campaign treasurer for Rodney Smith over the United Auto Insurance PAC issue I still voted for him and support him. He is doing a fantastic job in Circuit Criminal and I am confident he will do the right thing if he is ever assigned to United Auto Insurance cases in the future.

Anonymous said...

Every judicial candidate has a long list of contributors who are attorneys who appear before the judge sometimes almost daily.
Why is that not of concern to those who are talking about United Auto cases?
I threw a fundraiser that netted about $25K for a judge once and then walked in to argue a motion in front of that same judge the next morning.

Anonymous said...

Not to pick on Lombana, but I always thought it a bit suspicious when someone on an appellate or federal judicial nominating commission appears in front of a judge who is seeking or will seek a position there. Imagine being on the other side. You show up to argue a very important motion and your judge has tried three times to get on the 3d DCA and your opponent is the person with the power to put him or her there.