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, June 30, 2014

LABARGA TAKES THE GAVEL

Justice Jorge Labarga becomes Chief Justice of the Florida Supreme Court today in a "passing the gavel" ceremony in Tallahassee. 


Trivia: name the last Florida Supreme Court Justice to serve on the circuit bench in the hallowed halls (not to mention asbestos stuffed ceilings) of the REGJB?

Juveniles cannot be sentenced to life. Graham v. Florida, 130 S.Ct. 2011 (2010).  So can a 16 year old with a life expectancy of 74 years be sentenced to 60 or 70 years?  Is it disingenuous to sentence a juvenile to 70 or 80 years? 

What happens when you're going to be late for work because your hot water is out; you work for a world wide company and you mistakenly email the entire company instead of your work group? 
Jokesters like Rumpole respond to your tweet. Check this extremely funny string of tweets on Buzzfeed. 

Trivia: T/F: A Florida Supreme Court Justice was once arrested for drug trafficking? 

History: The Florida Supreme Court was created when Florida became a State in A) 1840; B) 1845; C)1859. 

The Court had three justices from inception until the number was increased to its current size of seven in A) 1900; B) 1940: C)1957.

In which of the following cases does the court NOT have mandatory jurisdiction: A) Death Penalty cases; B) Cases where there was a suit between counties; C) Review of Statewide agency rates for gas, electric, and telephone utilities. D) Bar complaints against certain, anonymous bloggers. 


The answers are below.

Short Holiday week. Who's going out of town, and who is staying? 

See You In Court. 







Give yourself an "A" of you answered "B" to all the questions. 



Friday, June 27, 2014

RUNAWAY


BREAKING: MIRANDA FIRES HER BAILIFF....Details are sketchy but are trickling in. What we know is that sometime on Friday morning/afternoon, the bailiff was fired AND escorted off the premises of the REGJB. The breakup of the employer-employee relationship does not appear to be mutual or pretty.

SATURDAY BREAKING: NY TIMES DISCOVERS BROWARD'S DRINKING JUDGES:
 The NY Times (here)  and reporter Frances Robles (returning to her old stomping grounds; Robles was a reporter for the Herald back when.) have finally discovered the dirty little secret called the Broward County Judiciary.

The Times, with a Justice Building Blog type headline: "Here Comes The Judge, In Cuffs", (love it, wish we thought of it first)  reports on the recent DUI-epidemic that ran through the Broward Judiciary (motto: "one for the road") . The Times expands the coverage of incompetence and downright strangeness to the latest rumor: That a Broward County Robe-wearer is under federal investigation for his/her work, as a judge, in a family case. The allegation is that the Judge was improperly influenced by that wonderful  Ponzi-scheme financed -Scott Rothstein led- RRA law firm that could only germinate and flourish in the fetid, soupy good-old boy and gal -we hate Miami- attitude- of Broweird County. ( Russel Addler, the "A" in the RRA law firm cried his way to a top- of- the- guidelines 30 month sentence before Judge Cohn on Friday here).

JAA BLOG...GONE? Just when Bill Gelin and his JAA blog get a shout-out from the NY Times, (see above), the JAA blog is down. Clicking on the link yields the dreaded 404 error.
Coincidence? Hardly. We don't believe in coincidences, especially when it comes to Broweird,  where corruption and incompetence vie to be the  middle name.

Broward....it reminds us of Winston Churchill's quote in his memoirs of the Second World War about the Night of the Long Knives in Nazi Germany and German re-armament before the start of the war:  "I was deeply affected by the episode...it seemed to me to be invested with a ruthless urine tinge: it glittered and it glared."

Nothing like a good Churchill quote to put a corrupt and dangerous regime into perspective.

AND NOW.....RUNAWAY
In memory of the great, recently passed Casey Kasem, we take you back to 1961 and the number one hit of Del Shannon. During the frenzy, this song was selling 80,000 singles a day. 

We send this out to ours, and everyone's, favourite Miami Heat Player.....

BREAKING NEWS FOR SATURDAY: Both Dwayne Wade and Chris Bosh have opted out of their contracts with your Miami Heat. So now we have three Run-aways!

From 1961, Del Shannon....RUNAWAY!










(I think we hit the post on the song).


ORIGINAL INTENT

ORIGINAL INTENT: What's the deal with original intent? Why use it? Does it make any sense?
Justice Scalia is the foremost proponent of interpreting the Constitution by the intent of the framers. Otherwise, all interpretations are just judicially manufactured claptrap. And "claptrap" is pretty much what Scalia called the majority's opinion in the Supreme Court's case about recess appointments. 
Scalia concurred with the decision here,  because he supported the outcome: the striking down of three appointments President Obama made to the NLRB during a short senate recess. 
You need to read Scalia's opinion if you care about how precedent is created. 


What the majority needs to sustain its judgment is anambiguous text and a clear historical practice. What it has is a clear text and an at-best-ambiguous historical practice. 


The real tragedy of today’s decision is not simply theabolition of the Constitution’s limits on the recessappointment power and the substitution of a novel framework invented by this Court. It is the damage done to ourseparation-of-powers jurisprudence more generally. It is not every day that we encounter a proper case or controversy requiring interpretation of the Constitution’s structural provisions 



We should therefore take every opportunity to affirm the primacy ofthe Constitution’s enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand. 



WORLD CUP RUNNETH OVER:
Lose and ....you advance. Almost sounds like an NBA sponsored rule for the Miami Heat.  But it was on a bigger stage yesterday that the USA Soccer team, which has showed the world, and themselves that they can compete with the best, fell a bit short.
Thus the USA Soccer team advanced to the storied round of 16 in the world cup with a 1-0 loss to German. 




NBA DRAFT:
"With the first pick in the NBA draft, as approved by Lebron James, the Cleveland Cavaliers pick....."
The whole league makes us sick. 

Thursday, June 26, 2014

PRIVACY COMES AT A COST

The Supreme Court has spoken on the 4th Amendment. "Can you hear me now?" Riley v. California. 
The police need a warrant to search a cell phone, duh. 

The 4th amendment is about reasonableness (...unreasonable search and seizures...) and reasonableness generally requires a warrant to seize evidence. 


Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement "by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Such a balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might well support the warrantless searches at issue here.
But while Robinson's categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones. On the government interest side, Robinson concluded that the two risks identified in Chimel-harm to officers and destruction of evidence-are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information [*9] on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.
We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search.

Potential harm is a big issue for this analysis:
Perhaps the same might have been said of the cigarette pack seized from Robinson's pocket. Once an officer gained control of the pack, it was unlikely that Robinson could have accessed the pack's contents. But unknown physical objects may always pose risks, no matter how slight, during the tense atmosphere of a custodial arrest. The officer in Robinson testified that he could not identify the objects in the cigarette pack but knew they were not cigarettes. See 414 U.S., at 223 , 236, n. 7. Given that, a further search was a reasonable protective measure. No such unknowns exist with respect to digital data. As the First Circuit explained, the officers who searched Wurie's cell phone "knew exactly what they would find therein: data. They also knew that the data could not harm them.
Rumpole says: The Data cannot cause harm? Ha! Tell that to the defendant whose wife see's his text messages....

More nuggets:

The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search "is acceptable solely because a person is in custody."

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person. The term "cell phone" is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
...

Mobile application software on a cell phone, or "apps," offer a range of tools for managing detailed information about all aspects of a person's life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase "there's an app for that" is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user's life. 
...

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is "a totally different thing to search a man's pockets and use against him what they contain, from ransacking his house for everything which may incriminate him. If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previ-ously found in the home; it also contains a broad array of private information never found in a home in any form-unless the phone is.


...

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

Individual rights and freedoms come at a cost too. See You In Court, more motions to suppress to file.



Wednesday, June 25, 2014

LOYALTY

Openings  Tuesday in the tragic and contentious case of the murder of Miami Detective James Walker. The defendant Andrew Rolle is represented by David Peckins and Stuart Adelstein. ASA Abby Rifkin laid out the prosecution's case in her opening statement in which she told the jury that Rolle was trying to kill another individual and in fleeing from the scene he mistook Detective Walker's car for his get-away car. When Walker pulled his service firearm, Rolle sprayed his car with an automatic rifle. 
The trial continues this week and probably next week. 


LOYALTY: 
"LE-RUN AWAY" opted out of his contract with your Miami Heat. Of course getting lectured on loyalty by Pat Run-away-Riley was not much of an incentive to stay. Sort of like being lectured by a US Senator on the need to put aside partisan politics. Anyway, hope you enjoyed your little run with the Heat. We can look forward to the four night TBS Special where your favourite superstar keeps us all in multi-night suspense until he announces amid balloons and confetti that he's "taking his talents to" 
Madison Square Garden, LA, Boston, Chicago, Charlotte, etc. Let's see how many loyal Heat fans a 31-51 season brings to the Arena, excluding Judge Colodny of course, who is the real deal. And how about de Cowboys?
A pic tweeted by the Dallas Cowboys yesterday













Speaking of the Senate, JUDGE BETH BLOOM was confirmed Tuesday by your US Senate unanimously to be a United States District Court Judge. There are now two openings on the Circuit Bench. 

U.S. Senate Roll Call Votes 113th Congress - 2nd Session
as compiled through Senate LIS by the Senate Bill Clerk under the direction of the Secretary of the Senate
Vote Summary
Question: On the Nomination (Confirmation Beth Bloom, of Florida, to be U.S. District Judge )
Vote Number:208Vote Date:June 24, 2014, 11:46 AM
Required For Majority:1/2Vote Result:Nomination Confirmed
Nomination Number:PN1398
Nomination Description:Beth Bloom, of Florida, to be United States District Judge for the Southern District of Florida
Vote Counts:YEAs95
NAYs0
Not Voting5


Here's the thing about being a judge. It's kinda boring isn't it? The work (if you're conscientious) never ends. Every day is the same. We like waking up in the morning and wondering what type of problem a client will bring us. We like the financial rewards, and we like doing cross and opening and closing, and all of the strategizing those events require. Reading jury instructions is boring. Calculating guidelines is for the birds. And don't even get us started on civil court. Motions for summary judgment on bond defaults......zzzzzzzzzzz. 

The Bench? You can have it. We like being where the action is. 

See You In Court. 

Tuesday, June 24, 2014

F-BOMBS

UPDATE: BLOOM CONFIRMED. Judge Beth Bloom was confirmed by the US Senate Tuesday morning by a vote of 95-0. She joins a now long line of former county court judges who worked their way up to the Federal Bench. Judge Gayles, Judge Moreno, and  Judge Altonaga also make up that distinguished conga line.


Judge Tinkler-Mendez:
Everybody (who is anybody) is talking about the animosity between the defense and the prosecution in the latest murder trial before Judge Tinkler-Mendez. The F word, F bombs, and a few other maledictions are being passed between the parties-outside the presence of the jury. 

Doesn't Judge Tinkler-Mendez try anything other than serious, nasty murder cases? We understand she is back-up, but still, even if you eat steak every night, you want a hamburger once-in- a- while. 

Judge Bloom: See our updated post yesterday, for her status. Cloture was invoked. Next up is the vote on the nomination. Stay tuned.  We will post when the Senate votes. 52nd Street Irving sets the odds at 1-5 in favor of confirmation. 

YOU SAY POTATO - WE SAY POHTAHTOE:
A little geography quiz: 
Name the small island in the Caribbean the US invaded during the Reagan administration to save a group of US medical students from rowdy Communist-Cuban engineers.

Did you say Granada? or Grenada? One is a city in Spain, the other  an island in the Caribbean. 

Dr.  Edward Gamson, a US dentist on holiday in London, booked two tickets for himself and his wife on British Airways for Granada, Spain. BA sent him and his wife to Grenada, in the Caribbean. After apologizing for their mistake, BA  REFUSED to fly Dr. Gamson and his wife to Granada.  A lawsuit (and a ton of bad publicity) is now pending. 

Mark Twain wrote that the difference between the right word and almost the right word is the difference between a lightning bug and lightning. 

See You In Court. 


Monday, June 23, 2014

BLOOM CLOTURE VOTE TONIGHT-CONFIRMATION VOTE TOMORROW

BREAKING: Sometime around 6:30 PM EDST, the senate invoked cloture on the nomination of Judge Bloom. Watching the vote on C-Span (Motto: "The natural sleep remedy") it appeared that the "Yea" vote from Senator Levin put Judge Bloom over the top (51). We erroneously reported (see below) that 60 votes were needed to invoke cloture. While that is true in general for cloture, we forgot that the Senate Democrats (Motto: "Holding on to a majority by a bare thread") previously invoked the "nuclear option" for the President's nominees and reduced the number of votes to invoke cloture from the historic sixty to fifty-one. The nuclear option does not apply to Supreme Court nominees. 
The Senate should vote on the nomination, now that cloture was invoked and there can be no filibuster, sometime tomorrow afternoon or Wednesday at the latest. 

Meanwhile, DOM's blog has the "after" picture with new Federal Judge Gayles and Judge Moreno after the CJ swore him in. 






XMLU.S. Senate Roll Call Votes 113th Congress - 2nd Session
as compiled through Senate LIS by the Senate Bill Clerk under the direction of the Secretary of the Senate
Vote Summary
Question: On the Nomination (Confirmation Darrin P. Gayles, of Florida, to be U.S. District Judge )
Vote Number:197Vote Date:June 17, 2014, 11:54 AM
Required For Majority:1/2Vote Result:Nomination Confirmed
Nomination Number:PN1400
Nomination Description:Darrin P. Gayles, of Florida, to be United States District Judge for the Southern District of Florida
Vote Counts:YEAs98
NAYs0
Not Voting2




At 5:30 P.M., tonight, the U.S. Senate will vote for cloture.  It takes a three-fifths vote (60 votes) to invoke cloture, which places a time limit on the discussion of the vote. By invoking cloture, there can be no filibuster (literally "talk till you drop"). 

Senator Reid has set the conformation vote for several judicial nominations, including Judge Bloom's, for 11:00 AM Tuesday, meaning that by the end of tomorrow Judge Bloom will have a job for life and there will be another opening on the circuit bench in Miami. 

Good luck Judge Bloom. 

LEFT OR RIGHT?
Here's something that's been on our mind for sometime: 

When you leave the back of the REGJB to perambulate to the PD's office, which way do you go? Left, or right? 

We think that your choice says a lot about who you are. 
For us, it's always been "when in doubt, go left." 
But for others, "right is right." 

Take our poll. 

CORRIGENDUM:* 
We erroneously commented that after the conviction of disgraced former officer German Bosque that Judge De La O did not take him into custody. We were incorrect. After the verdict, Judge De La O set a $50,000.00 bond and house arrest. 
@Davidovalle305 later tweeted that Bosque was taken into custody when a bondsman refused to remain on the bond. 
A check of the Dade Corrections Website over the weekend did not turn up a German Bosque as being in custody, so some bondsman posted the bond (as surprising as that may seem). 

See You In Court. 



* We again save our robed readers the tedium of a google search. A corrigendum is a correction of a previously published article. 



Saturday, June 21, 2014

IRAQ, SYRIA, AND IMMIGRATION.










Iraq and Syria are being ripped apart by sectarian violence along the deep fault line of Sunni versus Shiite.  Iraq and Syria are doomed, much like Yugoslavia was ripped apart in the 1980's and 1990's by its internal factions of Croats, Bosnian Serbs, and others. 

The Islamic State in Iraq and Syria ISIS is the best funded terrorist organization in the world. The fall of Mosul, the second largest city in Iraq may have netted ISIS over $400 million dollars from looting the Central Bank of Iraq. With ISIS's goal of killing ever non-Sunni Muslim,  Syria and Iraq can never be pieced back together. A decade and half of violence since 2001 has shown that Sunnis and Shiites will never co-exist. Iraq has been a see-saw of retribution, with one faction exacting revenge when in power. Back and forth it went- Saddam Hussein  led Iraq's minority Sunni population for decades, oppressing Shiites and Kurds. The invasion of Iraq and subsequent election put the Shiites back into power, and revenge was exacted on the Sunnis. Now the Sunnis are fighting back, exacting revenge on Shiites with predictable atrocities. 
Humpty Dumpty had a great fall. 

Americans view the ethnic violence from afar with disgust and superiority. We are, after all, a nation of immigrants. A melting pot. "Give me your tired, your poor, your huddled masses yearning to be free..."

Item: In 2007, Farmers Branch, Texas passed a law requiring all renters of property to prove legal immigration status. 

Item: In 2010 Arizona passed a "Safe Neighborhoods Act" requiring all immigrants to  register within 30 days of entry into the U.S. and carry those papers with them "at all times". Failure to comply was a crime.  Police were authorized to stop any individual  they thought was an immigrant to check their papers. In 2012 the U.S. Supreme Court upheld most of the law. 

"The wretched refuse of your teeming shore, send these homeless, tempest-tost, to me...."

Item: In the wake of Arizona's law, Alabama passed a law requiring children and parents to show immigration papers before children can enroll in school. Alabama also criminalizes most contact between citizens and illegal immigrants. Police are authorized to stop people under suspicion of violating the law and demand that they show papers authorizing their presence in the U.S. 

Item: Civil rights org reports here:
This toxic environment, in which hateful rhetoric targets immigrants while the number of hate crimes against Hispanics and others perceived to be immigrants steadily increases, has caused a heightened sense of fear in communities around the country.

In a one-hour video called 'Clanging of the Swords IV,' ISIS showcases what it appears to believe is the best the group has to offer to anyone interested in joining: mass executions, vividly documented drive-by shootings, and romantic background music about the greatness of Allah. The video is extremely graphic and difficult to watch...

"I lift my lamp beside the golden door."




Friday, June 20, 2014

THE ROBERTS COURT

THE CAPTAIN REPORTS:

Book of the Week Club ....

‘Uncertain Justice : The Roberts Court and the Constitution’ by Laurence Tribe and Joshua Matz (from the WSJ):

The 2005 Senate Judiciary Committee hearing on the nomination of John Roberts to be chief justice is best remembered for his oft-quoted assertion that “judges are like umpires.” Few remember the line that preceded it: “A certain humility should characterize the judicial role.” 

The Supreme Court will soon complete its ninth term with Roberts at the helm. In “Uncertain Justice,” Harvard Law School professor Laurence Tribe and his former student Joshua Matz find much to analyze and explain in the “wondrous complexity” of the Roberts court. Their well-told story is not one of judicial modesty, however, either for the aspirations of the Roberts court or for its impact on American life. 

http://www.washingtonpost.com/opinions/book-review-uncertain-justice--the-roberts-court-and-the-constitution-by-laurence-tribe-and-joshua-matz/2014/06/20/e403a656-db78-11e3-b745-87d39690c5c0_story.html?wpisrc=nl%5Fpopns

Cap Out ....
Captain4Justice@gmail.com


NEW TIMES HONORS WILLIAM  GELIN AND JAA BROWARD BLOG 

The Broward JAA Blog creator William Gelin  nabbed the prestigious New Times "Best Gadfly" award. 

"Lawyers love to gab. If they're not throwing jurisprudence around at judges or juries, they're talking among themselves. Gossip and rumor, bragging rights and boasts — outside of high school girls, you won't find people who whisper more about their peers than the ladies and gentlemen of the court. William Gelin's light-bulb moment was to put all those courthouse bull sessions online. In 2006, the Oakland Park-based attorney went live with JAA Blog, a website that documents the day-to-day little dramas of the courthouse crowd in Broward. The result — a clearinghouse of info on power players, rounded out with anonymous comments from knowing readers — is a must-read. He airs grievances, blasts judges for poor decisions and early workday exits, and gives props to bailiffs and clerks. 2013 may have been Gelin's banner year."


We're sure the notification of our award is in the mail. 

And finally, an example of Karma: A defendant mistakenly acquitted is killed a few hours later:

A burglary defendant in Fresno who was freed because a jury mistakenly signed a not-guilty form in his trial on Wednesday was killed a few hours later in a fight. After the jury error, the flabbergasted judge said he had no choice but to order Bobby Lee Pearson, 37, released because the verdict had already been put on the record. It was too late when the judge learned that the jury stalled on an 8-to-4 vote in favor of guilt. Changing the verdict form and retrying Mr. Pearson would have exposed him to double jeopardy. After his release, Mr. Pearson went to his sister’s home, where the Fresno police chief, Jerry Dyer, said he got into a fight with her boyfriend, Willie Gray, 35. Mr. Pearson was found dead, and Mr. Gray was arrested.

Enjoy a nice summer weekend. 


Thursday, June 19, 2014

THE BELL TOLLS FOR GERMAN BOSQUE

UPDATE: BOSQUE GUILTY AS CHARGED OF WITNESS TAMPERING AND FALSE IMPRISONMENT. NOT GUILTY OF BATTERY. 

David Ovalle's Herald article on the verdict here. 

Closing arguments Thursday afternoon for the most fired cop in Florida: German Bosque, of the Opa Locka Police Department (motto: "join up and beat up a few suspects for fun" ). 

Bosque, who washed out of the police academy twice (twice!) and was fired from multiple police departments beat the bejesus out of a man who showed up at the police station to file a complaint against him. Again, to make sure you understand- Bosque punched a man who was holding a baby in the face. The man later showed up at the police station to file a complain against Bosque.  The dispatcher called Bosque (naturally, it being Opa Locka) and Bosque showed up, and in a display of sterling police work, threw the man's cell phone away, punched him, and handcuffed him. 

Our prediction: it's awfully hard to convict even the dirtiest of police officers. The jury convicts Bosque of Battery. 

We will post again once the verdict is announced. 

Tuesday, June 17, 2014

THE BEST OF THE BEST

ASA Sally Weintraub is retiring at the end of this month. She's a spry 85. Judge Reemberto Diaz, who had several memorable battles against her when he was a defense attorney, rightly called her "one of the best of the best." 

The Herald's article, written by David Ovalle is here. 
Having had our share of cases with Ms. Weintraub, we echo Judge Diaz's comment: The best of the best.  

Some of the highlights from Ovalle's article: 
Janet Reno recruited Ms. Weintraub in 1979, when she was in her 50's! Most lawyers have an eye on an early retirement at that age. Sally Weintraub started the career that would define her as a lawyer. 
Ms. Weintraub had many accomplishments in her career, which the Herald article recounts. We confine our remarks to her last case: The prosecution of the murderer of young Rilya Wilson. 
Rilya Wilson was a foster child. Her disappearance wasn't  noticed/was covered up- for an astounding fifteen months! She was unwanted, apparently unloved, and the State sadly failed in it's obligation to this child. But Sally Weintraub spoke for her when no one else could or would. She prosecuted her killer. The convictions for kidnapping and child abuse couldn't bring this poor child back, but it gave her a dignity in death that she was deprived of in life: someone cared. 

Our community has been blessed because of Ms. Weintraub. We need more prosecutors like her. Personally, we didn't always agree with how she saw a case. But we always respected her view and her dedication. We wish her well in her retirement; a retirement she earned decades ago, but forfeited to serve the people of Miami. Godspeed Ms. Weintraub. 

JUDGE GAYLES CONFIRMED. 

Judge Darrin Gayles was confirmed by the United States senate (motto "proudly not agreeing on almost anything since 1789, but even more so recently") 98-0 on Tuesday as a United States District Judge. Judge Gayles joins a distinguished group of District Court Judges who started their judicial career in the REGJB as a County Court Judge. From Misdemeanors in 2004 to a lifetime appointment in 10 years. Not bad. Not bad at all. 
(For you history buffs who take umbrage with the date of 1789, the senate was created in the drafting of the Constitution in 1787, but first convened in 1789.) 

Is the Bloom off the RoseUPDATE: NO!
Judge Beth Bloom was nominated at the same time as Judge Gayles. She and Judge Gayles were voted favourably out of the Senate Judiciary Committee at the same time. And yet Judge Gayles was confirmed, but a vote was not held on Judge Bloom, who in our humble opinion is as equally deserving as Judge Gayles. We (for once) have no answer as to the delay. Can anyone shed some light on this? 
UPDATE: Several alert readers wrote in to inform us that Judge Gayles was included with other judicial nominees for political purposes that relate to private matters. Judge Bloom's nomination is scheduled for an up/down vote with the next batch of Judges. However, not to jinx anyone, but in this current political climate, if Obama sneezes and uses the wrong handkerchief, the right wing of the senate is likely to respond by freezing all his judicial nominees. We hope Judge Bloom gets a vote before the 2014 political season heats up with the mid-term elections.

See you in court. 


Monday, June 16, 2014

WITH A WHIMPER

Let's see...what to write about? Oh yeah.......

And so it ends, not with "1, or 2, or, 3, or 4, or 5, or 6, but 7" as they so boastfully shouted at the beginning, when their world was verdant,  parties celebrating their impending championships were everywhere, and all seemed possible. But then they were beaten at home in the finals by the upstart Dallas Mavericks in 2011, and they sandwiched that loss with this current series loss to the Spurs, finishing with a yawn inducing pedestrian 2-2 record in four NBA Finals. There's nothing special about a team that wins two of four. 

The Spurs are a special team. Five titles in fourteen years, four in twelve, one every three years for a decade and a half. Numbers that the Heat boasted about, but cannot and will not achieve. The Spurs were built and rebuilt by shrewd basketball moves, not pouting superstars who couldn't win on their own. "We're a true team" said Tony Parker after he won his 4th title with Tim Duncan and Parker Ginobili, the obvious reference to the Heat unspoken and unnecessary. A draft-day trade three years ago (not a rant from a spoiled star) brought Kawhi Leonard, who now is all of 22 years old, and was named the series MVP. Boris Diaw, a journeyman reserve joined the team last year. This year he started in the finals. This is not a team of quick fixes where the inmates run the asylum (Carmelo Anthony anyone?). This is a team built on fundamentals and this is a team built to last. With 5 titles in 14 years, the success of the Spur's philosophy speaks for itself.  

"Not a day went by that I didn't think of game six" admitted Spurs coach Gregg Popovich, alluding to the last 30 seconds of the game that saw the championship slip from the Spur's grasp last year. So what did the Spurs do? Throw money at every free agent superstar? Let Tim Duncan draw up game plans and decide who the team would sign? No, the Spurs are a Team, and the coach coaches, the players play, and all they do is win. Five in fourteen years. Four in twelve. A dynasty built on a firm foundation. 

It remains to be seen whether Miami's "tres leeches" (don't email us, we know we spelled it wrong if tres leches is what we wanted to spell, which we didn't) will bring the promised seven titles to this City. Titles guaranteed before one got old, and another was exposed as  average, and a third was and remains a failed television reality show participant ("I've decided to bring my talents to South Beach"); a spectacle of showmanship, lacking the pride, intensity, and integrity that separates champions that endure (Duncan) from spectacles that glitter and fade (insert your heat player here). Ephemeral wisps of braggadocio, backed up by words and fist bumps and high fives, and finger pointing and outlandish celebrations, but not by deeds and titles. 

The Boston Celtics won eleven championships from 1957 to 1969. Michael Jordan led his Bulls to six- three before he retired, and three when he came back. Showtime in LA won four.  The Heat, like any so-so team that puts together a few decent seasons? Two in four. Nothing special. But then again, what did you expect from a team built without character? 

All that glitters is not gold

And so it ends, not with a bang, not with seven, but with a whimper, four blow-out losses in five games. A championship series in name only because it wasn't close. The 1927 Yankees versus the 1962 Mets. A champion versus a joke, a pretender exposed. A twisted ankle.  No AC. Heat, cramps, excuses.  The emperor has no clothes, and Miami doesn't have a championship basketball team. 

There will be no ring ceremony to start the 2014-2015 Miami Heat season. There won't be flashing lights, and people dancing in the aisles in the Miami arena. No parades down Biscayne Boulevard in June this year either. June 2014 is marked in Miami by an arena that emptied in the early third quarter, and scattered boos, by fans who were promised more. Lose? It's not allowed for the Heat. Why, if they can't win four of seven then make the series five of eight, or six of nine. Change the rules, do anything, just let us dance with wild abandon in our thousand dollar seats  and celebrate championships and hug strangers and stand in fetid heat on Biscayne Boulevard while our stars drive by in air conditioned limos, because anything less is not fun, and this is Fun-Town USA. 

Oh, and one more thing. 

The era of sellouts and Miami Heat tickets being tough to get is over as well. Because if there is one thing about this town, like their phony basketball team, Miami is a bunch of spoiled, bandwagon jumping fans who have as much loyalty as a Donald Sterling girlfriend. 

Just ask the Dolphins and the Marlins and the Panthers about that. 

See you in court. 

PRACTICE MAKES PERFECT

Being a long time denizen of the REGJB, you gradually acquire a bit of tunnel vision as you perambulate to and from your car to the courthouse. A rooster runs across your path? No problem. A bag of feathers espied perched ominously on a railing? Not your concern. Thus, it apparently took a while before an alert reader emailed us this puzzling sign, posted in by the PDs office. 


Just who has the joie de vivre that must be expressed on 12th Street (or is it 12th avenue? We always get confused)
And why are practice zones needed? 
A mystery begs an answer. 

LOVE AND MARRIAGE
Love and marriage go together like....Judge Cohn and a federal indictment? No, that's not how the song goes. But that's how the feds roll, when they indicted a husband and wife, arrested them almost in their martial bed- in pari delicto as it were- and accused them of marriage fraud/immigration fraud most foul. You see in the good ol' USA you can marry for love or money, but not for citizenship. 
But cupid pulled back his arrow and it landed in the august offices of everyone's favourite federal blogger- David O Markus with a K. And if Mr. Markus is anything, he is a romantic. Quick to leap to the defense of a client,  Mr. Markus was faster than a barefoot jack rabbit on a hot greased griddle in defense of love and marriage. Mr Markus, along with an all-star cast of lawyers- Fred Haddad (sans tie, natch) and Paul Petruzzi- stood firm for love and brought the feds to the eve of trial, where, like a forlorn senior without a date for the prom, they decided to stay home and dismissed their case. 

The Sun Sentinel love sonnet  is here

Go hence, to have more talk of these sad things,
some shall be pardoned, and some punished, 
for never was a story of more woe
than this of Juliet and her Romeo. 

Romeo and Juliet, William Shakespeare. Act V, scene III. 


See you in court. Amor Vincit Omnia.*







*For our robed readers, we'll save you the google search: Love Conquers All. 

Thursday, June 12, 2014

ANOTHER REMAND FOR DISCHARGE AND LET'S GO ENGLAND!

FRIDAY MORNING UPDATE:
 The ball bounced quietly,  echoes floating up through a cavernous and quietly emptying arena, boos floating where once cheers were heard. People looking at their watches, making uncomfortable gestures, avoiding looking at a scoreboard which marched impatiently and irrevocably towards another blowout defeat of the hometown Miami Heat. Patrons shifted in their seats, stared at their phones, looked anywhere but at the court where the news went from bad to worse. Eventually, (this being Miami) the inability to laugh and cheer raucously with abandon, the lack of high-spirited hi-fives from strangers, got too much; and the "fans" left. A trickle of ants up the arena steps turned into a flood of humanity as early morning meetings, the last days of school, a sick spouse at home, any excuse really, was muttered as people excused themselves from their seats and left the team they professed undying love for (many on the pages of this blog), leaving spoiled millionaires in shorts envying hoi polloi for once, as the terms of their contracts forced them to endure the thumping from their Texas based foes. Although the supposed "best of the best" was noticeably absent (twice), as an urgent bathroom break, presumably accompanied by the now famous cramps, allowed him the peaceful respite from the glare of the cameras, the boos, and the scoreboard. 

I judge the character of a man by the way he handles defeat, not victory. And in this regard, the heat and their fans were decidedly found lacking: "In war: Resolution. In defeat: Defiance; In victory: Magnanimity; In peace: Goodwill."
The Heat and their "fans" showed none of these traits. 

First the 3rd in John Connelly's case (our post is here) and now another shaky murder conviction has been reversed and remanded with instructions that the defendant be discharged. This time the Supremes got into the act as the Florida Supreme Court remanded the case of Dausch v. State with instructions that the defendant, convicted of first degree murder and sentenced to death, be discharged! 

Long time and careful readers will recall our post from a few weeks ago (here)  when Judges Hirsch and Rebull took aim at the battered and beleaguered circumstantial evidence rule. Well, the rule is alive and well:


The circumstantial evidence in this case leaves uncertain Dausch’s hypothesis of innocence and is, therefore, “not adequate to sustain a verdict of guilt.” ...

We do not take lightly the result that will flow from our decision today. We have reviewed the entire record in this case with the utmost seriousness and care. Yet, our comprehensive review of this case leaves us with the inescapable conclusion that the evidence is simply insufficient to conclude, beyond a reasonable doubt, that Dausch was the person responsible for murdering Mobley. At best, the evidence presented by the State creates a suspicion of guilt. Therefore, because we conclude that there is a lack of competent substantial evidence to support Dausch’s convictions, we reverse and vacate both of Dausch’s convictions and sentences. We remand this case to the trial court with instructions that a judgment of acquittal be entered. 
It is so ordered. 



The decision is here for your perusal. 

An enormous Rumpolian WELL DONE, WELL DONE INDEED to Daytona Beach appellate defense attorneys (7th Circuit PDs) Christopher Quarles, Esq., and Nancy Ryan, Esq. 






The World Cup has begun. The lads from England, led by Wayne Rooney on the pitch, in division D,  are whom we are rooting for. 



First match Saturday night: England vs. Italy. 

The weekend approaches: Carpe Vinum


Tuesday, June 10, 2014

JASON MITCHELL GUILTY OF MURDER OF SEAN TAYLOR

WEDNESDAY MORNING UPDATE: Just pondering who got beat worse last night? House Majority Leader Eric Cantor- 56%-44% or the Miami Heat? 
Cantor performed as well as Heat player Mario Chalmers, who had a staggering two points and three turnovers. 
Apparently, the Heat struggled because of concern over the situation in the Ukraine, while Cantor was pounded over his (supposed) position on immigration reform. 

As afternoon approached evening and day slipped into night, so did the life of Jason Mitchell fade into incarcerated oblivion as a Miami jury convicted him of the murder of football star Sean Taylor.  The first degree murder conviction triggers a mandatory life sentence, and Judge Murphy will presumably sentence Mitchell to life in prison either this evening or sometime thereafter.  sentenced Mitchell to life in prison before adjourning court for the day. 

ASAs Reid Ruben and Marie Mato for the prosecution. 

Bob Barrar, who we think may have been appointed as a limited registry attorney, for the defense. If Barrar was appointed as a limited registry attorney, that means he signed a contract in which he agreed to a minimal flat fee (perhaps as low as $2,000) to handle this case regardless of how complicated it was and how long it took to try the case. 
With all due respect to Mr. Barrar, he should not have accepted appointment on a case of this complexity and nature as a limited registry attorney. 


SECRET NOTE:
The jury returned a verdict along with a note to Judge Murphy. The judge cryptically stated that the note was unrelated to the verdict. As of yet, the contents of the note have not been disclosed. 
More information as we receive it. 

Jason Mitchell found  GUILTY of first degree murder of Sean Taylor, even though the evidence clearly indicated that while Mitchell planned the burglary, he did not pull the trigger on the firearm that fired the fatal bullet. 


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. 


BY SPECIAL REQUEST OF A LOYAL READER:

"A little bit of rhythm and a whole lot of soul"

A very apt description of your favourite blogger. 





IT'S ALL HAPPENING TUESDAY

Tuesday will be a big day in our humble REGJB.

Closing arguments are scheduled in State v. Jason Mitchell, the case involving the tragic murder of Sean Taylor. No inside info, but we expect that Reid Ruben will do one or both of the prosecution's closing arguments (they get rebuttal because before the law changed, they were losing too many trials and the legislature put an end to that by golly). Want to see one of the best trial lawyers in action? Go watch Reid.

Action resumes in State v. Officer Funny Face. The trial has been on a bit of hiatus, as a scheduling issue delayed matters until Tuesday, when a defense witness will testify. The only issue after that is will the defendant, a former police officer and presumably an individual experienced in testifying and cross examination, testify?

Most long time and careful readers know Rumpole's aversion for having a client testify. Indeed in federal court they enhanced the punishment if your client has the temerity to testify. But in state court, for us the issue is that the jury naturally tends to focus exclusively on the client's testimony and all other issues of reasonable doubt are forgotten. If your client does well, you are ahead. If your client stumbles, you are behind. Usually most prosecutors are not experienced in cross examination, as they have spent years at the podium asking "what happened next?" But in this trial, ASA David Gilbert is waiting in the wings, a lion in the tall grass, ready to pounce. Gilbert is as experienced an ASA in the Dade SAO office as they have, and like Reid Ruben, he is a pro and will be prepared.

We do not expect either Messrs. Gilbert or Ruben to not answer the bell in trial because of cramps.

See you in court.


Sunday, June 08, 2014

CAUTION

CAUTION: MAY CAUSE CRAMPING. 




LeBron can't play here: 



And he certainly can't do this:

Bikrim Choudhry leading a Bikrim Hot Yoga class. 

But he can go here. 


and here:


Saturday, June 07, 2014

THE MAN IN THE AREA




There he is. The man in the arena. Broken but unbowed. Courageously playing a game through pain, obliviously to his discomfort, thinking only of the team. The heroics of it all! The inspiration this will provide to generations to come. One can almost hear the sergeant on some distant, foreign shore, in some future war, rallying his troops, screaming about the great one, playing through pain. 

Somebody give this man a raise! He's earned it. 





THE NUN IN THE ARENA
Speaking of great competitors, this NUN WON Italy's version of The Voice last night, singing a rousing version of "What A Feeling" from the movie Flashdance. 






Oh what a feeling, to rise above adversity. To compete, per chance to win, no matter the odds, no matter the humidity level. 
All of Miami is a better place today, because of the heroics of our hometown champs. 

If you can pull yourself off the couch in what must be a stunned stupor of admiration for that spectacle, go outside and enjoy a beautiful spring like weekend. Monday is always around the corner. 


Friday, June 06, 2014

D-DAY

Seventy years ago today was the day of days. 

When people are asked about meeting a person from history or being at a historical moment they will say things like they want to meet Jesus, or be at his resurrection,  or at Kennedy's inaugural address or at the launch of Apollo 11. 

For us it has always been Normandy, France, June 6, 1944. 

To be a member of the 101st or 82nd Airborne, or the British 6th Airborne division. and see Ike walking the line of young men, their faces black, about to get into airplanes and jump into the night sky over occupied France. 









To come ashore at bloody Omaha Beach or scale the cliffs at Point Du Hoc with the 1st Rangers Battalion. 









To see the greatest armada ever assembled, and watch 100,000 men on the greatest day in the history of the modern world. The invasion of occupied France marked the beginning of the end of the Third Reich. 


But success was far from assured. If the invasion had failed, and it almost did in a hundred different ways, Hitler might have been able to sue for peace on the Western Front, allowing him to concentrate his forces in the east and battle Russia into a standoff somewhere in eastern Europe. The US would have turned its attention to the Pacific and who knows what appetite England and America would have had for another cross channel invasion in 1945 after several years of war? The world might look like a startlingly different place if brave men hadn't fought and died for freedom in places like Ste Mere Eglise, and what is now called the Pegasus Bridge over the Caen canal outside of Benouville, France. 

In his book "The Pegasus Bridge", author Stephen Ambrose argues that fate of the entire invasion hung on the British 6th Airborne's ability to hold the two bridges over the Caen Canal and Orne River. Major John Howard commanded D company of the 2nd Oxfordshire and Buckinghamshire Light Infantry (Ox and Bucks) Brigade. 
Pegasus Bridge and D Company. An elderly Major Howard in the upper right corner. 

D company had the distinction of being the first allied forces to land in Normandy, a few minutes after Midnight on June 6, 1944. They came by glider, and their mission was to capture and hold the two bridges until relieved by additional airborne forces at D-day + 3 hours. If the Germans re-took both bridges, then they could have set up a defensive perimeter with Panzers that would have made it impossible for the 6th Airborne to re-take the bridges.  Colonel Hans Von Luck, commander of the 125th Panzer Grenadier Regiment of the 21st Panzer division later contended that if he had re-taken those bridges, he could have thrown his regiment of tanks into a late D-Day afternoon counterattack that would have made it to Juno and Sword Beaches. 




A Panzer regiment behind the lines on the beaches would have rolled up the entire invasion, destroying all the equipment being unloaded. 

At  about D-day +1:30, or 1:30 in the morning of June 6, 1944, a squad of six Panzers slowly approached the bridge over the river Caen that D company had taken an hour before in a daring raid. D company was no match for German tanks. Sgt. M. C. Thornton had a small, hand-held Piat rifle which shot, when it worked -which was not often, a small anti-tank missile. 
Major Howard placed Sgt. Thornton at a t-junction just before the bridge. The first of six mighty Panzers cautiously approached the bridge. Sgt. Thornton sat quietly, his hands shaking, his heart beating out of his chest, as he watched the tank approach. He would have one shot. He and his entire company had trained for this night-this moment- with a singular purpose for the last two years. If he missed or the gun mis-fired, the Panzer's guns would surely take him out and then the tanks would roll unobstructed across the bridge.  The Piat had a range of 50 yards, but really wasn't effective outside of 20. 
Thornton waited. 

Ambrose speculates, although Thornton couldn't have known it at the time, that the fate of the entire invasion hung in the balance. Failure to destroy the tank would have led to the Germans retaking the bridges. This mission had been given top priority over all other D-day missions. Allied command knew the value of those two bridges. Thornton fired, the tank went up in flames, the other Panzer's retreated, fearing they were facing a superior force. The bridges remained in British hands and Von Luck's Panzers never had the opportunity to drive to the beach and stop the invasion. 

When Ambrose interviewed Sgt. Thornton many years later, Thornton told him not to make him look like a hero, to which Ambrose replied: "I don't make heroes, Sgt., I only write about them." 

There are a thousand such stories on June 6, 1944. The day of days. The most important day in the history of western civilization. 

We would have given anything to be there. We were born a few decades too late. 


Bust and Plaque of Major John Howard in France commemorating his being awarded the Croix de guerre-the War Cross which France awarded tho those who fought for the liberation of France. 
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