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 29, 2014

VOIRE DIRE IN SEAN TAYLOR MURDER

Jury selection continues in the case of the second defendant to go to trial in the murder of  UM/Redskins football star Sean Taylor. Reid Ruben and Marie Mato for the State, Bob Bararr for the defense. Judge Murphy presiding.



In case you missed it and haven't been reading the comments to yesterday's post, the heat got beat last night. The wheels may well be coming off that band wagon so many of have hopped on.

Go to DOM's federal blog and read about what Judge Gleeson, EDNY, did. Gleeson is clearly the finest district court judge in the nation, with all due respect to the wonderful Judge Richard Kopf,  District Court Judge in Nebraska, and author of the second best legal blog in the nation: Hercules and the Umpire.


NEW HIT COP-COMEDY MOVIE STARTS MONDAY:
Here's the scene: Hip South Beach. Late at night turns into early morning. A couple of cops making the rounds of the clubs that are closing stumble upon a bachelorette party and are mistaken for strippers by the partying gals. The cops play along and take the girls for a spin on the beach on their ATV. Staring Vince Vaughn, Owen Wilson, and Jonah Hill. 


Oh wait. It's a real criminal case and it's going to trial Monday after voire dire this week. Officer "funny face" on the right (Derek Kuilan) faces charges of DUI serious bodily injury (he hit and injured two people on the beach during his joyride with the bride on his ATV) reckless driving, and criminal stupidity (enhanced to a felony for wearing a badge while posing for a picture). Evan Hoffman for the defense. 

Truth is indeed stranger than fiction.

SAO VOWS TO APPEAL DECISION IN CONNELLY CASE:
Dade State Attorney Katherine Fernandez-Rundle (D-on vacation) vowed to appeal the decision of the 3rd DCA reversing and discharging disgrace former FBI agent John Connelly. The state will first seek an en banc (literally "Does anyone else think Leslie is right?") hearing of all of the judges of the 3rd DCA. Assuming a negative outcome at the 3rd, the state will seek certiorari with the Florida Supreme Court. In our expert opinion, appellate litigation could delay the resolution well beyond a year and up to two years. We have no idea if Connelly will be  released during this time, although we think that legally it is technically possible. Stay tuned. 


Air travel back from LA  may well keep us silent for the weekend.  

See You In Court.

Wednesday, May 28, 2014

FBI AGENT JOHN CONNOLLY'S MURDER CONVICTION REVERSED!

The 3rd DCA just reversed and DISCHARGED!!!!  the conviction against former FBI agent John Connolly. Connolly was the FBI agent who was corrupted by Whitey Bulger.
In a case that reads like a crime novel, Connolly was charged with conspiracy to commit murder and first degree murder in 2005 for the 1982 hit on John Callahan, who was involved with Miami Jai alai. Co-defendants (who were not tried at the time) included Whitey Bulger, Steve "The Rifleman" Flemmi, and John Martorano.  


To make a very long story short, Connolly was acquitted of conspiracy,  and the jury found him guilty of the lesser of second degree murder with a firearm. The inclusion of the firearm made all the difference in the world because it re-classified the felony to a life felony. In 1982, second degree murder without a firearm had a four year statute of limitations.


Martorano was the triggerman. Connolly never carried the gun used to kill the deceased. Indeed, at the time of the murder, Connolly was in Boston. The state argued that the jury instruction for second degree murder with a firearm as a lesser was justified because at the time of the murder Connolly was carrying his service revolver in Boston.


Judge Blake (the trial judge) did not set aside the verdict. He did sentence Connolly to forty years.


But the 3rd DCA reversed Judge Suarez holding, au contraire mon ami, the state's theory regarding the firearm  was as sturdy as a raft from Mariel,  Cuba.
The opinion is here.

"The language, “with a firearm” is singular,
and refers to the manner in which John Callahan was killed: it is clearly a reference to the only firearm used to murder Callahan. It is pure sophistry to argue that the general reference to section 775.087 in Count 1 of the indictment put Connolly on notice that his service weapon—an uncharged firearm unrelated to the murder, located in an entirely different state at the time of the offense—could later be the basis for reclassifying a time-barred conviction of a lesser included offense to a non-time-barred life felony, for committing the offense “with a firearm."
Without the firearm reclassification, the conviction for second degree murder is time barred. Thus the 3rd DCA DISCHARGED Connolly.  Sophistry indeed. "See ya."


Judge Rothenberg dissented.


A BIG BIG win for Manny Alvarez of the PDs office. Manny continually wins big appeals for the PDS office. He has shown again why he is one of the best appellate attorneys in this state.  Also a big win for Bruce Fleisher and Manny Cassabielle, who represented Connolly at trial and followed Rumpole's advice and objected and preserved the record.
Von Zamft led the prosecution team at trial.


Connolly may have a fed conviction that he owes time on, so we're not sure he is going to be released. But it is still an big big win for the defense.


For more on Connolly, Flemmi, and Bulger, read "Whitey Bulger, America's Most Wanted Gangster", by Boston Globe reporters Kevin Cullen and Shelly Murphy.


See you in court. Remember, when in doubt, object.



SIGN ON THE DOTTED LINE


D..i...a..z..d...e...l...a..p..o..r..t..i...hey, there's not enough room!


Why is this man signing the front/back of a folder/binder/menu? 

Why is putting this picture on your election website seen as helpful to wooing voters? 

Shouldn't a successful lawyer be reading a case, or signing an important and complex document instead of scribbling on the back of some brown something-or-other? 

Also, he's either not wearing a tie (which is fine by us) or has a napkin tucked in over his tie (which is kinda-dorky).  It's hard to tell. There's also two white lines running parallel though his hair. 


Update: an alert reader, possibly with the NSA satellite recon unit, noticed the wallet and cell phone on the windowsill. Could be signs of a poorly tailored suit. Mens Warehouse anyone? Also, close inspection yields that there are buttons visible on the shirt. No napkin.

All in all, not the best political photo we've ever seen. 
This one is much better:


President Ronald Wilson Reagan, July 3, 1986
Why is this man running for judge? ( The guy signing the menu, not President Reagan.)  We ask the hard questions other members in the media won't. 

Maybe it doesn't matter if your name is Renier Diaz De La Portilla ala-vote-for-me-because-of -my-name-por-favor.

DUI CHECKPOINT ALERT:
Constitutionally, the police are required to publicize a DUI checkpoint. We pass on the information as part of our spirit of public service. 

The Broward Sheriff's Office will be running a DUI checkpoint today from 7:30 am to 11:00 am at the entrance to the Judicial parking lot at the Main Courthouse in Fort Lauderdale today. 

Kindly act accordingly. 

Drive safe and sober* and see you in court. 



* unless you wear robe and work north of the border. 


Tuesday, May 27, 2014

POTATOES

UPDATE: HERE'S THE A-FORM (THEY CALL IT PC AFFIDAVIT IN BROWEIRD) FOR THE JUDGE. The Judge refused to provide a urine/blood sample. She blew a 0.00 and she took a bizarre selfie-video earlier in the morning as she ran off the road on I-95. Clients! whaddya going to do? 

UPDATE: JUDGE LYNN ROSENTHAL ARRESTED IN BROWARD FOR DUI AND POSSIBLY LSA. The JAA Broward Blog has all the details.
With all due respect to our Broward colleagues, it's a miserable place to work, populated by unhappy people whose only joy in life is bringing misery to others. It is therefore not surprising to us to see that the Broward Judiciary has a substance abuse problem. Being the way that they are has a way of taking a toll on a person and catching up with them. Karma Kramer.


Judge Ric Margolius, Ret. (SA) saw fit to write into the blog last week. We generally will re-post anything a judge submits, especially if he is in a cantankerous mood:



Ric Margolius said...
This is only the second time I have written to the Blog since as a rule I avoid the juvenile nonsense that masquerades as legitimate discourse. My judicial career is 33 years wearing the robe and over 500 jury trials as a ASA, PD, County Judge, Circuit Judge and Senior Judge. Respectfully, anyone who advocates a sounding calendar is a blithering idiot. They simply serve no useful purpose. A complete waste of time and money. Disrespectful to the private bar, and takes valuable time away from the pit attorneys who need that time to prepare their caseload. I spent 15 consecutive years in 4-6 (the longest continuous tenure in criminal division in the history of the MJB) and next to Rob Pineiro (bless his soul) had the lowest case load year after year after year. How did I do it? Simple - never granted a second continuance except in exceptional circumstances. I wasn't there to be popular or win friends. You can all go screw yourselves was my motto then and that continues to this day. Ask any PD or ASA who worked in my Court, how I handled the caseload which NEVER exceeded 599. Thanks for reading, now you can all go back to writing about your imaginary nightclubs, imaginary trial lawyers and your sex lives which exist only in your imagination.

Friday, May 23, 2014 8:47:00 AM
 Delete


Rumpole notes: It's hard to read between the lines of this comment, since the good judge-as always-tends to moderate his comments so as not to offend anyone. But in our expert opinion, he tends to slightly disfavour soundings. 

Miami Herald Reporter/Tweeter/TV Star David Ovalle posted this picture of REGJB lawyer Simon Steckel inspecting the damage to his rental vehicle in NYC.  The driver of the ATV, who was fleeing from NY's Finest? To quote  Hans in "Die Hard", "He won't be joining us for the rest of his life."






JUDGE $USPENDED.
Embattled Broward Judge Giselle Pollack was suspended without pay by the Florida Supreme Court on Friday. Tough way to start the holiday weekend. The order and related docs from the Florida Supreme Court are here.  H/T JAA Blog. 

Rumpole and Scalia agree: We both dislike the proposal to reduce law school from three years to two. The Justice made his comments in a commencement address at William and Marys, reported by the WSJ Law Blog here. 

Short week. Summer is here. 
See you in court. 








Friday, May 23, 2014

STEAK

UPDATE: What is Rumpole reading this holiday weekend as he digests his steak and sips his wine? 
"Stress Test" Tim Geithner's account of his public service. From an Assistant Secretary of Treasury during the international monetary crises of the Clinton administration: The Mexican Peso crisis followed by the meltdown of emerging Asian Markets, to his time as Secretary of the Treasury when he and a new president struggled every day during the first year of Obama's presidency to stop a deep recession in the U.S from turning into a financial contagion. 
It's a very good and quick read and well worth your time. 

We excel at many things besides being an exceptional trial lawyer and writing a blog that sizzles. 
We also cook. 

Just in time for Memorial Day, we present to you: "Rumpole On Steak."

Rumpole on steak.

The good news is that you don't need a back yard bar-be-que to do a steak well at home. 
We do however, recommend a quality cast iron pan. 
Go put that pan on the stove and heat it up. And we mean, heat it up until it smokes and you are sure it is about to glow.  It will take a while to get it hot, so while it is heating, lets cover some other areas. 

Grass fed beef is  the best beef for you these days. No hormones, no antibiotics. It's all good. Did you know that free range grass fed beef has more Omega 3 fatty acids (the stuff that prevents heart attacks) than most salmon? So eat up. It's really really good for you.

Grass fed beef has less fat than other beef and there is no doubt that fat and marbling adds flavor to beef. Therefore, look for grass fed beef that is well marbled. The rib eye cut is the best. We also like flank steak, also called skirt steak or London Broil. Whether your steak is a porterhouse or t-bone or rib eye, or filet mignon, just take it out of the refrigerator an hour before cooking and wrap in a paper-towel to remove moisture. For skirt or flank steak, you can use a marinade, but that is a topic for another time. Do not, we repeat, DO NOT salt the steak before cooking. 

Your cut cannot be thicker than one inch. The steak needs to cook in five minutes. Any longer and bad things tend to happen. Stick to one inch. Size matters. 

Add a good quality kosher or rock salt to the pan. About a tablespoon.  Sprinkle it evenly across the bottom of the pan. Like Rumpole on cross, keep the heat on high. Once the pan start smoking, add the steak and be prepared to move quickly. 

Let the steak cook one minute and then using tongs, flip it. 
Let it cook another minute then flip it again. Then, every thirty seconds for the next 2- 1/2 -3 minutes, flip the steak (5-7 times more). Then take it out of the pan (don't forget to turn off the heat). If you've done it right, including the all important heating of the pan and patting the steak dry for an hour before cooking, the steak will have a beautiful crust on it.  Now put that bad boy on a cutting  board and let it rest for a few minutes. 

Put some butter in the pan. Turn the heat back on to low-medium. Throw in some chopped shallots and sliced mushrooms. Cook for about 3 minutes or until the mushrooms start to soften. Then add a half a cup of red wine. The wine  will de-glaze the pan and create a wonderful sauce that the mushrooms will finish in. 
Take the pan off the heat. 

Go back to your steak and slice it and then put a few strips on a plate and ladle the mushrooms and gravy over the steak. Baked potato optional. We prefer some nice broccoli or kale sautéed in garlic and oil. 

Serve with a big, bold red wine. These days we like a full bodied Petite Sirah.  Bogle vineyards makes a very reasonable Petite Sirah. If you really want to step up to the plate (and wineglass) this weekend look for the 2007 Priest Ranch, the 2009 Carver Sutro, or the 2010 Sean Thackery Petite Sirah. All will stand up to the rich, bold steak you just cooked. 

Those images that yet/ Fresh images beget
W.B. Yeats. 

Enjoy the holiday weekend. 


Thursday, May 22, 2014

A PLAN FOR NO MORE SOUNDINGS IN COUNTY COURT

County Court is a mysterious place. It moves to its own pace and rhythm.  It has its own colloquialisms, argot and vernacular. There are multiple calendars taking place in multiple courtrooms everyday. Lawyers hustle to catch the 10:45 in Newman before sprinting to make the 11:00 am in Krieger-Martin.

We admittedly know little about the mechanisms of what makes the courtrooms on two, five and six tick. But not knowing much has never stopped us from having an opinion. Or making a suggestion. Or fixing a problem.

Wednesday seems to be the worst day. Soundings. When lawyers scurry from courtroom to courtroom and make announcements about cases scheduled for trial ten days hence.

Listen to Rumple. We can end soundings.

How?
Simple.
E-mail.

Instead of appearing in court on Wednesdays, lawyers will have to email the judge.

The email from the ASA would be: "On State v. Smith,  the offer  on the DUI is first minimum penalties, unless the defendant elects a trial, at which point we will ask for 364, not that we're punishing the defendant for going to trial."

The email from the defense would be: "This should be a state continuance. On 12/12 the court granted a motion to compel for the prosecution to provide us with the sanzafranz breath contraption log of standard deviations. That was four months ago. The prosecution has failed to comply."

The email from the court would be: "The case is specially set for 2/22. The prosecution must provide the log by 1/31 or the breath sample will be excluded."

Case handled. Period. No driving to court. No running from courtroom to courtroom. All done by email from the comfort of your office or chambers. Some cases might require a few more emails, like the defense saying they cannot try the case on 2/22 because their mother-in-law is scheduled for goiter surgery, but those issues can also be handled by email. The emails get filed in the court's computer system. A record is kept. Motions are made. Rulings are issued. Cases move along. No expenditure of fossil fuels by driving to and from court. Less people in the REGJB. It all makes sense.
First start with represented defendants. Then un-represented defendants can be added and within one year 98% of all misdemeanor cases can be sounded by email.

It will work.

No fee.

See you in court.

.

Wednesday, May 21, 2014

BAKE CONTEST







Judge Brennan is holding a Bake Contest! Open all to habituates of our beloved REGJB.

When: Friday  WEDNESDAY June 4, 2014.

Time: 11 am.

Rumpole installs David S Markus, (NOT DOM) as the favourite.

This is a time honored REGJB tradition which in recent times has fallen by the way side.

Judge Martin Kahn used to hold various food related contests.  It was always a good way to pick up a good and free meal by crashing the contest back when we didn't have lunch money.

If someone could send us a copy of the flyer, we would appreciate it and would post it.

Rumpole approves of such endeavors. They foster a collegial atmosphere in our courthouse.

(UN)HAPPY IN IRAN
Six Iranians have been arrested for dancing in a video made of a Pharrell Williams song "Happy" (which we must admit we were unaware of until this story).

The CBS story is here.

Rumpole disapproves of such totalitarian activities by the Iranian government.

Holiday weekend coming up.
Don't miss Rumpole's much requested "How to Grill a Steak Indoors". This Friday. Until then....

See You In Court.

Tuesday, May 20, 2014

The Orange | Snap Judgment

The Orange | Snap Judgment




THIS IS SOMETHING YOU NEED TO LISTEN TO.




Spend five minutes or so and brighten up your day.
Click on "The Orange" and the link will take you to a website and a radio story. It's just a few minutes, but it's a very powerful story.  Do yourself a favor and listen to it.







HR

A BUSINESS DEAL

Everyone has their price, and that includes your humble blogger. 

It is therefore with some regret that we write to inform you that we have entered into a business transaction, which if successfully concluded, (and the odds appear to be very high in that regard) that we will retire and cease our daily struggle of writing this blog. 

As faithful readers you are entitled to some details. 

It appears that in a small country in Western Africa that a woman who is now a widow is in need of assistance. She was at one time married to a high ranking government official. We cannot at this time identify either the country or the name of our client's husband for obvious reasons. 

It further appears that our client's husband placed a very significant sum of money in a bank account for the care and feeding of her and her family. Due to the very shaky political situation in this country our client does not feel secure in obtaining these funds, thus she needs our services. 

Lets us take a moment to reflect on why this woman, so desperate and in need of honest and reliable counsel,  reached out to us. 
As we constantly lecture young lawyers, reputation is everything. And clearly our sterling reputation reached this woman even on the distant shores of the dark continent. Thus she felt secure in requesting our help, and even though without ever meeting us, she is going to arrange for the transfer of well over thirty three million dollars into our account. Our reputation was such that she trusted us. See how that pays off in the end? 

In any event, after some negotiations we have agreed to retain 22.5% as our fee for assisting in this rather complicated and complex transaction, and that dear readers means the final piece of the Rumpole Financial Puzzle is in place and that will see us well into retirement and this life and the next. 

Of course all the details have not yet been finalized and the funds have not been transferred as of yet. But this deal  is something that we foresee concluding sooner rather than later. And once that occurs, it is  hasta la vista  baby. 

Everyone has their price. 

Until then, See You In Court. 

Monday, May 19, 2014

LEAGUE OF PROSECUTORS JUDICIAL ENDORSEMENTS 2014

We now dip our toe into local politics, fully cognizant of the Mark Twain quote: "A lie can make it half way around the world while the truth is still putting its shoes on."

And that was before the internet. 





The League of Prosecutors (motto: "Not a group of superheroes, although we sound like we are")
had a judicial forum the other evening at UM law school. After the forum, the members  of the League voted for judicial endorsements. We don't know the particular rules for the vote, but the results say volumes about the quality of the judiciary: NONE OF THE ABOVE was a popular choice. 

There are eight (ocho) contested judicial races. Four ( roughly half, in our expert estimate) of the races received no endorsement. 

Those receiving the endorsement of the crusading group of current and former Assistant State Attorneys were: 

Rachel Dooley. In a three way race including a judge, this is a coup.

Judge Nuria Saenz. Can't say we have ever heard of the good judge, but that doesn't mean much.

Judge Rodney Smith. If ever there was a Judge who did NOT deserve opposition, it is Judge Smith. More on this race and the good Judge in another post. 

Judge Fleur Lobree.  If ever a Judge was up against the "name game" this is it. Think former Judge Shirloyn McWhorter. Lobree got whopped but good as a county court incumbent candidate last election by a latin female.  Then she was appointed to the circuit bench. Not surprisingly, another latin female has run against her. Politics is a tough game. Lobree needs to defend her seat. Being a good judge is not enough, and any judge who thinks it is will find themselves out of a job. This is the reality of our county and the judiciary. 

Notable candidates who did not get an endorsement: All of these candidates were in groups that got NO endorsement:

Tom Cobitz. Traffic Magistrate. Criminal Defense Attorney. He has our vote. Al Milian. Former Broward prosecutor. Current defense attorney. Lingering resentment from the whopping Milian and Matthewman put on the SAO in a murder case a few years ago? Perhaps.  Martin Zilber. The one endorsement he did  not get so far. Oscar Rodriguez-Fonts: PD, Regional Counsel, experienced. Nice Guy. Diaz De La Portilla de-la-vote -for-my-name-even-though-I-have-zero-experience? Not surprising. At least local politics isn't influencing the LOP. 

See You In Court. 
Vote for Judge Smith and donate to Judge Smith. He richly deserves your support. He should NOT have a challenger. 

Don't forget to vote in our Miami Heat poll; top left on the blog. 


Sunday, May 18, 2014

SUMMER READING LIST 2014

UPDATE: HEAT CRUSHED ON ROAD. Looking thoroughly beaten and never really in the game, your Miami Heat were crushed by the Indiana Pacers Sunday afternoon 107-96. Your Heat NEVER led in the game.  Don't forget to vote in our Miami Heat poll-------------------------------------------------------------------->

Summer is fast approaching. The Memorial Day Weekend starts next week. And along with back yard grilling and pool parties and baseball and lazy summer days sailing the breezes of Biscayne Bay comes our favourite activity (excluding the craftily placed hidden insult of a judge):  lying in a hammock by the ocean and reading a good book. 

Here's what Rumpole recommends:

The Goldfinch, by Donna Tartt. A pure work of genius by the author who has cemented her place as this generation's best fiction writer. 

The Hours, by Michael Cunningham. Another winner of the Pulitzer Prize (the Goldfinch was recently awarded this year's prize for fiction),  as well as the PEN/Faulkner award for fiction, The Hours explores the impact of Virginia Woolf's book on three generations of women: Virginia Woolf,  Mrs. Brown- married to a recently returned WWII Veteran, Brown is reading the book in 1949, and Clarissa Vaughn, a NYC Greenwich Village resident circa 2000-2001. 

Will Not Attend, by Adam Resnick. Hilarious short but true stories documenting the life of Mr. Resnick, a comedy writer. We loved the story about the Piano which recently appeared in the New Yorker. "Booker's a Nice Guy", a story about Resnick and his brother out for a car ride with their dad and coming across the school janitor was so funny, we had to close our Kindle several times to stop laughing. 

Flash Boys, by Michael Lewis.  Now you will know just how and why the stock market is rigged against the individual investor. If the banks and brokerages houses and multi-billion dollar hedge funds  are getting ripped by the electronic traders, what chance do you have?

Men's Lives, by Peter Matthiessen. A little read gem about the Long Island commercial fishing industry by a wonderful author who just recently passed away. Matthessen is better known for his "Killing Mr. Watson" trilogy about the early settlers of the West Coast of Florida and the Everglades. 

Selected Stories of Alice Munro. This woman is as good a short story writer as there is. What could possibly interest a gruff South Florida trial lawyer about the lives of Canadian women? A lot actually. Read this book. 

Where Nobody Knows Your Name, by John Feinstein. The best reality sports writer in the business turns his talents to the trials and tribulations of Baseball's minor leagues. A great baseball book for the fan. 

Lincoln's Boys, by Joshua Zeitz. Lincoln had two aides: John Hay and John Nicolay. They were with the President 24 hours a day. Not just witness to history, Hay and Nicolay were history. 

That should keep you busy for a while. If you need more recommendations, just email us. We are the most well read person we know. 

See you tomorrow in court. 



Friday, May 16, 2014

CLE FOR YOU AND ME

First: A big congrats to Rick Docobo for a big NG Thursday before Judge Verde on a murder case.  The defense rested and then the Defendant decided he wanted to testify. It's an old PD/Jedi Master mind trick. It apparently befuddled ASA Santiago Aroco who handled the case for the State. The Defendant's brother testified against him and Docobo still walked him! Well done. Well done indeed. 



RULE 3.113. MINIMUM STANDARDS FOR ATTORNEYS IN FELONY CASES 
Before an attorney may participate as counsel of record in the circuit court for any adult felony case, including postconviction proceedings before the trial court, the attorney must complete a course, approved by The Florida Bar for continuing legal education credits, of at least 100 minutes and covering the legal and ethical obligations of discovery in a criminal case, including the requirements of rule 3.220, and the principles established in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). 

This rule was just adopted by the Florida Supreme Court. 
Click here.  Or read below. Your choice. No fee. 





By May 16,  2016 you need 100 minutes of CLE in Giglio, Brady, and the joys, wonders, and secrets of Rule 3.220 of the Florida Rules Of Criminal Procedure. 

Enjoy. 






Thursday, May 15, 2014

THUS SPAKE ZARATHUSTRA....AND HIRSCH AND REBULL

Ms. Harrell was arrested for DUI and resisting without violence. Things went downhill from there. She won the battle (acquitted of DUI) but lost the war (convicted of resisting without violence).  The conviction was upheld on appeal by an appellate panel of the 11th Judicial Circuit. 

The opinion cites to John Marshall's closing argument in Commonwealth v. Randolph,  cites approvingly to the common law circumstantial evidence rule, and includes an old lawyer's ditty on circumstantial evidence.  All clues which would lead the  "aporetic"* reader to conclude s/he was holding in her hands nothing less than a Judge Milt Hirsch appellate opinion. 

The opinion is well worth a read and indeed a careful study for its elucidation of the common law circumstantial evidence rule (something every trial lawyer should know), a careful recitation of what lawyers need to do and say during the all important motions for judgment of acquittal, and an excellent primer on the difference between direct evidence and circumstantial evidence. 


With commendable lawyerly afflatus, appellate counsel for Ms. Harrell seek to divide and conquer. They bifurcate the crime into its actus reus and its mens rea, then argue that the latter was
not proven otherwise than circumstantially.
But this bifurcation has no place in the application of the common-law circumstantial evidence rule...

Notable in this opinion is the concurrence of Judge Rebull in which he very clearly signals his distaste for the use of the common law circumstantial evidence jury instruction. Rebull is not alone in his antipathy towards the instruction; he cites to a Florida Supreme Court decision calling the instruction "confusing, and incorrect" and "unnecessary." 




A warning: read the penultimate paragraph of the opinion, in which the court opines that rarely if ever, should a court grant a motion for a judgment of acquittal based on application of the common law circumstantial evidence case. The court likens the successful application of the law as to the existence of a quark- we know it exists, but it hasn't yet been seen. This is an ominous conclusion for the defense bar. It is supposedly supported by logic. See FN5, which we believe will become infamous in its erroneous application of circuitous logic, or more precisely:  a dangerous informal fallacy  Such conclusions (a court should never grant a motion for judgment of acquittal in a purely circumstantial evidence case) have no place in this, or any opinion. 

Lesson from all of this falderal? Thus Spake Zarathustra, A book For None and All:

O man, take care!
What does the deep midnight declare?
"I was asleep—
From a deep dream I woke and swear:—
The world is deep,
Deeper than day had been aware.
Deep is its woe—
Joy—deeper yet than agony:
Woe implores: Go!
But all joy wants eternity—
Wants deep, wants deep eternity


Thus Spake Hirsch and Rebull in Harrell v. State. An opinion for None and All. 

*Borrowed, without permission, from the opinion. The term describes a person who has doubt, is puzzled,  or is otherwise at a loss...





Wednesday, May 14, 2014

TOO DUMB TO DIE

The 5th Circuit Court of Appeals (motto "Affirming Texas Judges, Y'all") stayed the execution of one James Campbell because the defense uncovered evidence that he has an IQ of 69. Shockingly, the State of Texas tried to keep that information from the defense. Earlier, the same 5th Circuit had denied an appeal based on Texas's method of execution, with the defense arguing that in light of the recent bloody mess in Oklahoma,  a stay was in order. 


The 5th Circuit said this:

“We have been presented with evidence that Campbell, who will soon be executed unless we intervene, may not constitutionally be executed,” wrote Judge James L. Dennis for the court. “It is regrettable that we are now reviewing evidence of intellectual disability at the eleventh hour before Campbell’s scheduled execution,” he wrote. “However, from the record before us, it appears that we cannot fault Campbell or his attorneys, present or past, for the delay.”

So here is the current state of executions in America: 

It's ok for the state to make you suffer when killing you. But it's not constitutional if you're too damn dumb to know what's happening. 

What a great system. 

See you in court. 

Coming soon: "Thus Spake Zarathustra.... and you know who."



Monday, May 12, 2014

JOHNNY K CLOCKS WAXMAN

Before he was Judge Kastranakas, before he was a federal prosecutor, he was a Dade ASA and we called him Johnny K. 

But now, having shed his trial suit for depressing black robes, Circuit Court Judge John Kastrenakas, has made news by slapping Dade Lawyer Benjamin Waxman with 6K in costs for requiring the West Palm Beach SAO to litigate what the court deemed a frivolous motion. 

This has ominous overtones. We cannot recall any judge in any criminal case sanctioning a defense attorney with costs for fighting for their client.  

Defense attorneys already are threatened on a daily basis by prosecutors whilst judges sit idly by: 

"If the Defense persists in litigating this motion to suppress, we will withdraw all plea offers". 

Yeah, that's not a threat. It's just a friendly reminder. 

The Palm Beach Post article is here. 

H/T to the Captain for bringing this issue and the article to our attention. 

A missive to the criminal defense bar: The next time a prosecutor threatens your client on the record to withdraw a plea offer if you insist on litigating a motion, bond hearing, arthur hearing, please contact the FACDL. We need to start filing bar complaints and striking back. First it starts with bond hearings. Then motions to suppress. Soon prosecutors will be withdrawing all plea offers if you invoke discovery. 

See you in court, where to paraphrase the greatest man of the 20th century, we never never never never never give in to threats. 


Saturday, May 10, 2014

NEVER RAT ON YOUR FRIENDS

"You took your first pinch like a man and you learned the two greatest things in life....
never rat on your friends, and always keep your mouth shut."

Jimmy "The Gent" Conway, Goodfellas. 

How much easier would our jobs be if our clients followed Jimmy's advice? 

So why don't they? 

When you get past duplicitous cops, cops who lie, threaten, berate and beat suspects, we think it comes down to this: crime enacts a toll on the human psyche. And most people cannot pay the price. When they are caught, they are scared, and indeed, confession is good for the soul. 

It just wrecks your defense. 


Enjoy your weekend. See you in court Monday. 

UPDATE: NETS POUND HAPLESS HEAT IN PLAYOFF ROUT:
104-90. 

NFL Season opens for the Dolphins on September 7 at 1pm. Cheaters at the Fins. Something to look forward to during these depressing Heat beats. 


Thursday, May 08, 2014

RUN FOR JUDGE? YOU'RE FIRED!

Lawyer Christian Carrazana has filed to run against Judge Rodney Smith. 

Right up to the time he filed to run, Carrazana was gainfully employed by some firm named Panter and Panter. 

Once he filed, he was fired. 

How do we know this? 

Upon being fired, Carrazana immediately filed a petition to modify his child support, and blamed his firing on his refusal to  agree to Panter's demand (or was it the other Panter's demand? Or both? It's not clear) he switch from running against Judge Smith to an open seat. 




Seems a bit unseemly to us. Also seems like Carrazana needs a good lawyer to examine his options against Panter, or Panter, or both. 

As to the motion to take money from the care of his child, we disapprove. You should be able to to take care of your child before spending money on a judicial campaign. Family should be first. Especially children. Seems like bad judgement. Something you don't want in a judge. 

Just our opinion. Mr. Carrazana has an open invite to respond however he likes without any editing by us. 

See You In Court. 

Wednesday, May 07, 2014

ROUND UP THE USUAL SUSPECTS

With the 25th anniversary of the Tinanmen Square uprising less than a month away (June 3-4 1989) the Chinese authorities are rounding up activists, human rights lawyers, agitators, bloggers, and detaining them,  either with house arrest or in jail with no charges pending and no right to redress their custodial status.   The NY Times article on the round-up is here.

How great is it to live in a country where personal freedom is cherished and people are not held indefinitely on secret charges based on their political views? Isn't it (Guantanamo Bay) a wonderful thing (Martin Luther King 's Letter from Birmingham Jail, April 16, 1963) not to have indefinite detentions (Jimmy Ryce Act) in this country where people aren't crushed by the government for their personal views?

Just to refresh your knowledge of history, Dr. King was arrested after he defied the order of Circuit Court Judge W. A. Jenkins, that prohibited people from "parading, demonstrating, boycotting, trespassing and picketing."  Of course, we're different from China. Right?

From the Letter from Birmingham Jail:

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds. ...

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed...

But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-country drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you go forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.

Yes dear readers, we have a lot to be proud of in this country.

See You In Court.

Monday, May 05, 2014

NETS IN SIX

Nets in six over your Miami Heat. Take it to the bank. 

Dr. Vodka lawsuit. 
It didn't take long for some civil lawyer to parade in front the of media with a poster size picture of the wife and young children of Dr. Malcom Lloyd, who was killed as he rode in the Lamborghini of Andres Toro on April 24 after both men left a tony south beach restaurant. 

DUI Manslaughter cases stink. From top to bottom they are full of heartache, the genesis of which was a bad decision and an accident of some sort.  And now we have civil lawyers looking for their 40% before the body cools. The whole thing, covered by the Herald here, strikes us a unseemly. But then, most of modern day law strikes us as unseemly. 

THE GOLDFINCH
We wrote a review Sunday. If you didn't read, scroll down now.

Yes, we are obsessed with Donna Tartt. 
We leave you with theses stunning paragraphs:

And, increasingly, I find myself fixing on that refusal to pull back. Because I don’t care what anyone says or how often or winningly they say it: no one will ever, ever be able to persuade me that life is some awesome, rewarding treat. Because, here’s the truth: life is a catastrophe. The basic fact of existence — of walking around trying to feed ourselves and find friends and whatever else we do — is catastrophe. Forget all this ridiculous ‘Our Town’ nonsense everyone talks: the miracle of the newborn babe, the joy of one simple blossom, Life You Are Too Wonderful To Grasp, &c. For me — and I’ll keep repeating it doggedly till I die, till I fall over on my ungrateful nihilistic face and am too weak to say it: better never born, than born into this cesspool. Sinkhole of hospital beds, coffins, and broken hearts. No release, no appeal, no “do-overs” ...

And — maybe it’s ridiculous to go on in this vein, although it doesn’t matter since no one’s ever going to see this — but does it make any sense at all to know that it ends badly for all of us, even the happiest of us, and that we all lose everything that matters in the end — and yet to know as well, despite all this, as cruelly as the game is stacked, that it’s possible to play it with a kind of joy?

Make no mistake Dear Readers, she is a genius. 

See You In Court. 






THE LIMITED REGISTRY IS DEAD



THE CAPTAIN REPORTS:

"Perchance he for whom this bell tolls may be so ill, as that he knows not it tolls for him; and perchance I may think myself so much better than I am, as that they who are about me, and see my state, may have caused it to toll for me, and I know not that."  John Donne (1572-1631), Devotions Upon Emergent Occasions.

OR, SAID ANOTHER WAY: "Ding Dong The Witch Is Dead".

Which old witch you ask?

Well, none other than the Limited Registry.***

The 2012 Florida Legislature passed SB 1960 which created the infamous LR.  And for the past two years, the Private Court Appointed Counsel (PCAC) program was in limbo while the new law was under attack from all sides.  Litigation abounded throughout the State, most particularly in South Florida.  The train was driven by the local Miami Chapter of FACDL, and they deserve much credit for derailing the LR train.

Finally, after 24 months, on July 1, 2014, the LR will be no more.  And, amazingly, the 2014 Florida Legislature went several steps further.

***Before 2012, there was only a General Registry of PCAC attorneys.  LR attorneys contractually agreed to take all court appointments with the understanding that they could not, under any circumstances, file a Motion with the Court, (under Makemson), requesting they be paid above the cap, when they handled extraordinary cases.  Only LR attorneys received court appointments during the past two years; General Registry attorneys were, for the most part, left out of the appointments process; (except in capital cases).

For years, FACDL has been lobbying the issue of the statutory fees and the caps on those fees.  Those caps were last increased the year Ronald Wilson Reagan was sworn into office. (That's 1981 for those of you under the age of 33).

Under the Appropriations bill passed by both chambers late Friday night, the Maximum Fees on criminal cases will look like this:

CASE TYPE     CURRENT MAX FEE    NEW MAX FEE

Noncapital nonlife felonies
                            $2,500                                             $6,000

Life felony cases                         
                            $3,000                                             $9,000

Capital cases                           
                           $15,000                                           $25,000

Appeals cases                   
                           $2,000                                             $9,000

There are other changes that the bill addresses, but those other changes do not have any effect here in South Florida; YET.  In the Sixth, Ninth, Tenth, and Thirteenth Judicial Circuits, they have created a "cross-circuit conflict representation pilot project".

Currently, when the PD conflicts, the case goes to the Regional Counsel's office.  When the RC conflicts, the case then goes to the PCAC Registry.  Under the pilot project, in the above Circuits, when the PD and RC conflict in the 6th Circuit, the case will go to the PD in the 13th Circuit.  When the same thing happens in the 10th Circuit, the PD's office in the 9th will be assigned the case.  And vice versa.

If this pilot project works, you will see an eventual phase out of nearly all PCAC cases in those Circuits.  Only when four different offices conflict would there then need to be a PCAC attorney ready to take the case.

If we look at history, pre-RC, in the 11th Circuit, the PD was conflicting on about 3,000 cases each year.  That's 3,000 cases that were then being assigned to PCAC attorneys.  Since the inception of the RC, about 75% of the PD conflicts now end up with the Office of the RC.  That leaves about 750 cases annually that are handled by the attorneys that are on the PCAC Registry.

If the legislature likes what they see with the pilot project, will Miami-Dade and Broward be next in cross-circuit representation?  If that happens, the 750 case figure would likely drop by 90% or more.

So, there you have it.  The new law is scheduled to take effect on July 1, 2014, absent a veto by the Governor.

CAPTAIN OUT .....
Captain4Justice@gmail.com

Sunday, May 04, 2014

THE GOLDFINCH

Let's get this straight right away:  Donna Tarrt,  born and raised in Mississippi, is this generation's Harper Lee, and her Pulitzer Prize winning novel  "The Goldfinch" deserves its place next to Lee's masterpiece To Kill A Mockingbird.


                                          (Donna Taart)

We admit to dancing around the novel. At 775 pages on our Kindle, it required the type of commitment that two pending appeals and a lengthy trial stood in the way of. Woe to us should we have let such mundane considerations prevent us from prose so powerful that the last one hundred pages literally took our breath away.

The title of the book refers to a small masterpiece- a painting of a small bird discretely chained to a perch in a home- by Carel Fabritius, a Dutch master and student of Rembrandt. Fabritius painted The Goldfinch in 1654.  The painting is at the heart of- and fuels the life of- the hero of the book, Theo Decker, whom we meet in current day New York City, as he is being suspended from school. Such a small, mundane event. A school suspension. A rainstorm.  Lives changed forever.




Theo needs a protagonist for his own story (as Theo is such for The Goldfinch).  Enter Boris, who is more aptly the Id to Theo's Ego and Super Ego.  Scout and Jem Finch have arrived.  Next isHobie, who is as modest and honest as Atticus Finch and provides what ever grounding Theo can accept. And Boo Radley, who hovers over Mockingbird? Tarrt gives us Pippa, and we spend the novel wondering whether Theo's  love will ever be requited? The town folk of Scout and Jem's  are represented by Theo's father and his friends who populate, of all places, Las Vegas. 

But it is the last hundred pages that we are envious of.  Make that jealous. And in awe. 
As Stephen King's review in the NY Times pointed out, Tarrt probably spent ten years on this work. Which means, that as she sat in the NY Public Library's main branch (where she writes) sometime during year nine, she was in a zone few writers ever approach. It had taken her nine years to bring the story to this point. And now, knowing that her readers would be hanging on every word and every page, she lets loose with prose so powerful, that at times we would snap our kindle shut, frightened and breathless and in awe of a woman with such powers and talent.  And Tarrt, as was her right at this point (having earned it) writes about love, and death, and the meaning of life and good and evil and how and why a painting speaks to us across hundreds of years and the shortness of our own lives;  just merely the topics every author (yours included) aspires to address when they start a novel. And if we (as writers) are lucky, we but tangentially brush across one of those themes adequately in a lifetime of writing.  Tarrt, because she had planted so well, and is endowed with talent beyond words to describe, covers each of those themes, with exquisite power and talent. And words and sentences and phrases that, we can only say again, take your breath away. 

This is what King wrote: 
This means she labored over “The Goldfinch,” her latest novel, for at least as long. Such a prodigious investment of time and talent indicates an equally prodigious amount of ambition, but surely there must be periods of self-doubt. To write a novel this large and dense is equivalent to sailing from America to Ireland in a rowboat, a job both lonely and exhausting. Especially when there are storms. Suppose, the writer thinks (must think), this is all for nothing? What if I’m failing and don’t know it? What if I make the crossing and am greeted not with cheers but with indifference or even contempt?


King, better than we ever could, addresses the fear of the novelist. Again, we remind you that Tarrt took ten years of her life to write this novel. Think of the gamble when you read about Theo's somewhat absent father. 

King rightly reminds us of the perils of writing. But we are transfixed by the rewards. 

To walk up the steps of that great library every day; to find your spot; open your laptop; and create! The joy, the pain, the splendid isolation that only a writer can find in  such a populous, crowded place and island. Knowing the secret of doing what only you can do.  There is an indescribable joy to such moments. Joy surrounded by pain and doubt and labor so exhausting that the writer must remind herself (as Tarrt undoubtedly did) that she was doing what she loved to do, but also what she was compelled to do. Pain and pleasure, with no choice in either. 

Back to those last hundred pages. The reward. Having brought the reader so far. And all those themes, like brightly colored strands of wool, just dangling there waiting to be woven into the final garment of the novel. Life. Why? Death always wins. So why even try? Why paint? Why love when it is not returned? Why be good? Can good flow from evil? Suicide. Murder. Justice. Money. Sex. Drugs. The simple misplacement  of a passport, like the beginning pages when Theo is suspended and NYC is drenched in a rainstorm, can change a life forever. 

This, my dear readers, is A NOVEL. A Book. A work of art by a genius no less talented than Carel Fabritius was at his own craft. 
Read this book, if reading, and art, and ideas mean anything at all to you. 

Only a writer reads this book at his or her own peril, as the insignificance of their talent, compared to a master, will become so readily apparent. 

It was enough for us to almost call our editor and tell him to throw the damn draft away. 

Tomorrow the Captain writes about the death of the Limited Registry.