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Thursday, November 20, 2014

THE GOOD FIGHT

The 3rd DCA reversed Judge Milt Hirsch this week in a case in which Judge Hirsch suppressed DNA obtained via consent for one case, but in which the DNA was matched to another crime in the database. 

We don't have Judge Hirsch's order granting the defense's motion to suppress but what we can glean from the decision  is that the privacy concerns and the issues of governmental intrusion into our genetic code fueled the order- along with Judge Alex Kozinsky's powerful dissent in U.S. v. Kincade, 379 F.3d 813, 870  (9th Cir. 2014). 

Here is the link to the 3rd's opinion. State v. Gibson.  (If this was in Broward you might have to pay to read it, but no one has ever mistaken this venue for Broward). 

If we didn't have intelligent and thoughtful and courageous Judges who are willing to look at cases and issues from outside the box and from different angles, then we would just have a rubber-stamp judiciary (11th Cir anyone?) in which cases and defendants are transported into the maw of the criminal justice system and come out the backend broken and incarcerated with their convictions routinely affirmed (11th Cir anyone?).  

Thankfully we have some judges who don't run in that hamster wheel that the government tries to force them into. 

BTW: It's National Peanut Butter Fudge Day. The resolution approving the day cleared the senate last year 51-49 and President Obama signed the bill into law. 

See you in court. 

6 comments:

Anonymous said...

While I like Milt and admire his desire to improve the system, he needs to stop issuing orders in clear violation of current law. Milt's job is not to make the law, but to follow it. When he's on the Supreme Court, he can do more. But for now, he needs to stop ignoring precedent.

This case was an easy one. There's was no way his order was going to be upheld.

BTDT

Anonymous said...

I'm all for thoughtful consideration of new and novel issues. Apparently, however Judge Hirsch ignored a huge body of federal and state cases to reach a particular result. Judge Salter, who is as fair and even handed a judge as one could get, called this order a "substantial and unsupported departure" from established precedent. An agenda is an agenda, whether it comes from the right or the left. It is NOT the "good fight."

Anonymous said...

Milt gets in the way of Milt. Just saying.

Anonymous said...

The Professor says:

SCOTUS decided this issue in Maryland v. King last year. Take a look at 133 S.Ct. 1. I agree with 12:00 am and BTDT. This was not a good fight, it was wasted judicial effort. Another example of Milt talking to himself in the mirror.

Just Another Intern said...

German Bosque - the teflon weasle

Seth Sklarey said...

The problem with this case is that the consent form used by MDPD should be required to fully and explicitly inform the person signing the consent that the information obtained may be used in a subsequent court proceeding to convict him of a crime, more similar to a Miranda warning. Some good lawyer should take this concept to the SCOTUS, and the Public Defender should give out cards to defendants warning of the consequences of giving DNA samples or any other voluntary information.
I 'm curious. In Florida what information are you required to give to police and what can you withhold? Are you required to show ID or give your name, or can you choose to remain silent?
Are you allowed to photograph police confronting or arresting someone? Does Florida law prohibit recording conversations? Will body cameras on police or private citizens be a violation if there is an audio recording?
Have any of you thought about what the guidelines should be for police use of body cameras and what sanctions for improper use or deliberately turning them off or neglecting to turn them on.
Also, when stopped for a driving violation can you keep your door locked and just pass the license, registration and insurance though a crack in the window?
In Texas you don't have to show police your driver's license unless you are. In control of a vehicle and and have been stopped for a legitimate reason. What is the law in Florida?