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

Sunday, November 30, 2014

NFL WEEK 13 2014

Our survivor pool rolls on as the two finalists refuse to lose. 
This week Plea D is shopping with the Colts before Cyber Monday, while Dustin Tischler thinks he got a black Friday steal with the Rams. We could have a winner today. 

Speaking of winners and shopping, here is some way to pick up some ez holiday scratch:

The Packers at home -3 over the overrated Cheaters. -3, really?  This will pay for all of Xmas and a nice bottle of   for New Years Eve. 

Saints at Steelers. Kinda like the Steel men -3.5 at home, but really like the under 54.5. 

Colts -8.5 at  home versus Washington. 

Target claims to have sold 1,800 televisions a minute between when it opened on Thursday, Thanksgiving eve, and Friday evening.  For those of you playing at home, thats 108,000 sets an hour, and 1,296,000 televisions a day. 

Wednesday, November 26, 2014

ON RACE AND RIOTS

On July 12, 1967, Newark, New Jersey erupted into flames and rioting when two white police officers stopped and beat a black cabbie for "passing by them"  in his cab. By July 17, 26 people were dead and more than 725 were injured. 

On December 17, 1979, four City Of Miami police officers beat Arthur McDuffie to death, after he was seen speeding on a motorcycle.  In May, 1980, after an all white, all male jury acquitted the officers in Tampa (Judge Lenore Nesbitt acquitted one of the four on a rule 29 motion), residents of Overtown and Liberty City rioted,  after a protest at our courthouse- then known as the Metro Justice Building, turned ugly.  By the end of that week, as Miami burned, lawyers and litigants were walking into a  Justice Building guarded by armed national guard soldiers. 

The LA Watts riots. The Rodney King riots. Two more riots in the 1980's in Miami over race and the police. 

The meta-data strongly suggests that when white police officers are acquitted after killing black suspects, people riot. 

So why are people rioting? 
Because the Justice System is broken. 
When you think of the American Justice System, what do you think of?  Exceptional cases where people are vindicated? Or horror stories of innocent people plea bargaining in the face of overwhelming government  coercion? Innocent people spending decades on death row until exonerated by DNA. And this includes people who "confessed" even though innocent. 

If the Justice system doesn't provide justice, are we surprised that angry and disenfranchised people take to the streets? The people who are arrested for petty crimes like disorderly conduct or resisting arrest without violence or failure to obey the lawful order of a police officer and are processed through a system designed to wear them down and beat them down to the point where they eventually take a plea, with the promise all they have to do is pay a small fine. Until they realize  that the arrest follows them for the rest of their life and they can't get a decent job, they can't qualify for  government housing or benefits, and all they have left is their anger, and rage and the streets. 

That's why people flip police  cars and loot and burn the stores of innocent store owners. 

We stood with our friend in the Liberty City riots while his family butcher store, which had served the neighborhood for over thirty years, was burned to the ground. He cried, not for the loss of the store, but because he recognized the children of people he had done business with for decades, looting his shop- rage in their eyes, blinded by anger and hatred and with no other way to express those feelings. 

Race matters. It always has. It always will. We may someday become a society where a man or woman is judged by the content of their character and not the color of their skin. But how do we judge the content of the character of man or woman with a string of petty arrests for which they had no way to fight back?

Close your eyes? Imagine Rumpole, a middle aged lawyer of some renown, writing this blog. 

Did you see a black man or a white man? Be honest. 

Race will always matter. It's what we see when we see someone. 

But race does not have to mean rage. It can mean the same kind of wonderful differences that make all humans special and unique. 

But until we have a justice system that dispenses justice, race will always have a component of rage. Until we stop rewarding judges for the total number of cases they close out every year, and instead reward them for their fairness and honesty and their ability to see a wrong and make it right, race will matter to the black child who sees her father in jail, again, powerless to fight back, incarcerated  by  a system geared not to giving him justice, but to closing out his case as quickly as possible. 

This is why Ferguson is burning. Whether the officer was right or wrong, it doesn't matter. What matters is the perception that when it comes to court, race matters and the game is tilted in favor of the white police officers. This is why Newark burned, and why Miami burned and why Los Angeles burned, and this is why our cities will continue to burn. 

Because race matters in country where justice doesn't. 

See you in court unless the damn building is burned down before Monday. 

Monday, November 24, 2014

TIS THE SEASON

UPDATE: Our two remaining survivor pool players live another week, as both took the 49'ers who eked out a win over Washington. 

AHEM…..by INVITATION only. (If you're indicted, you're invited.)


Item: The new judicial assignments for 2015 are out.

Scene: A criminal defense law firm. A few lawyers sitting around the table dividing cases and coverage for Monday.

Dramatis Persona: Attorneys
Judges: Hirsch, Hersch, Schwartz, Schwartz, Swartz, Thomas, Thomas,

Attorney Thomas: Whose's covering Hirsch?
Attorney Schwartz:  I got Hirsch but not Hersch.
Thomas: You got Hirsch?
Schwartz: Sure.
Thomas: But not Hersch?
Schwartz: Right.
Thomas: That's what I am asking you. You have Hirsch?
Schwartz: Yes.
Thomas: Who's got Schwartz?
Schwartz: I got Schwartz, but not Swartz.
Thomas: What?
Schwartz: And you got Thomas and Hersch and Schwartz.
Thomas: Wait.
Schwartz. It's easy.
Thomas. So you have Hirsch, but not Hersch. Schwartz but not Swartz, and Thomas but not Thomas.
Schwartz. Exactly.
Thomas. I don't even know what I just said!!
Schwartz: It's really not complicated.
Thomas. Take it slow.
Schwartz. I got Hirsch. You should take Hersch. I got Schwartz and you can cover Swartz. And you go to Thomas and I go to Thomas.
Thomas: Aye Dios Mio.
Schwartz: Huh? Did you say De La O? That case got continued.




Sunday, November 23, 2014

NFL WEEK 12 2014 : A THANKSGIVING SPECIAL

We roar into Week 12 of the 2014 NFL season with our Fantasy Football league very competitive, our two remaining survivor pool players in a death grip struggle for the title, and with football set for Sunday, Sunday night, two games Monday and then the traditional Thanksgiving day games. Is there any better week for football? With a cold front expected to hit our fair town Wednesday, its shaping up to be a great holiday week. 

Need some flow for Black Friday?  Try out these money makers. 

The Broncos had their let down game last week. So this is the week Peyton and company bounce back against our Dolphins. It's going to be warm, if not downright sticky, and Peyton does much better in warm weather than cold. Petyon has a palatial condo on the tip of  South Beach, so maybe he's had some home cooking and this isn't as much a road trip for him as say Buffalo. 
 But we like the Dolphins to keep it close. They have been playing well, are well rested, and can compete. Take the 7 points for the hometown Fins and head on out to the stadium and cheer your cash home. 

The Bears came though for us last week, and we like the Bruins at home again, -5, against the Bucs. 

The Cowpokes on the road against the woeful Giants in New Jersey.  The Gints are getting 4 at home, while the pokes are coming off a bye week after a game in our favourite city in the world: London. We were initially thinking the Giants would keep it close against a rival. But on further review,  we like the under 48. 

Love the Saints at home Monday night against the Ravens -3. Can't see the Saints losing three in a row at home. 

Updated: Like the Texans over the visiting Bengals, even with RB Arian Foster out.  Take the Lone Star State boys with their new QB over the up and down Bengals. This is the cats third road trip in a row, and after a blow out by the Pack, an upset over the Saints, they are due to revert to their mean, and lose in Texas. Texans -2 over the Bungles. 

Also like the Bills in Detroit over the Jets. There's something about adversity that makes a team concentrate and perform.  Take the boys from snow-land giving up a pedestrian -2.5 over the hapless J..E…T…S

"With the first pick in the 2015 NFL draft the Oakland Raiders trade their first round pick to the NY Jets for the Jets first round picks in 2015, 2016, and 2017. The New York Jets are on the clock. 

With the first round pick in the 2015 draft, the New Jets select Jameis Winston, quarterback, Florida State." 

Thursday, November 20, 2014

KAYO MORGAN: DEATH OF A LEGEND

Amidst the insanity and horrible treatment of clients and attorneys alike in Broward County, stood one lawyer, a criminal defense attorney to his core, who never blinked, never wavered in the zealous defense of his clients, and quite frankly just never gave a damn what any prosecutor did or any judge said. His name was Kayo Morgan, and word reached us today that he passed away from cancer at age 62. 

Was there ever a better name for a trial lawyer than "Kayo"? Because many times that's what he did to his opponent's case at trial. 

The stories about Kayo are legendary, and a few must be told here, starting with the infamous Monkey.

Kayo had a pet monkey, that's just the type of guy he was. And as the Monkey got older, he developed some medical conditions, like we all do as we age. Kayo was set for trial in the Keys, his Monkey was ill and needed constant medical attention, so he filed a motion to continue, which the judge denied. So Kayo, being Kayo, showed up to try the case, with the Monkey as co-counsel! 


Kayo's Monkey Smooch, during a break in the proceedings. Really. 

The judge was not amused, and held Kayo in contempt. So guess what Kayo did? From the Sun Sentinel Article:

Morgan propped the monkey on his shoulder while questioning a witness at the contempt hearing.

That alone gets Kayo immediate entry to the trial lawyer hall of fame. 

We did an entire post on Kayo and the Monkey, here. 

But don't think that Kayo was a fool or a buffoon. Nothing could be further from the truth. He was a hell-of-a trial lawyer who took on the most difficult cases, and won more than his share of them. 

We first came across Kayo when we were in Judge Sepe's courtroom waiting to call a case, and this somewhat scruffy, unshaven man in jeans, cowboy boots, and a string-bolo tie, approached the podium, announced his appearance, and called a case for trial. 

As Sepe was inquiring whether he was an attorney, Kayo reached into his file and pulled out a crumpled piece of paper that was either an appellate opinion, a bar opinion, or an AG opinion, stating that he could not be required to wear a suit and tie while trying a case. Sepe was momentarily flummoxed, and then allowed  the case to go forward. The next day we were  present for the verdict: not guilty. 

Kayo Morgan was sui generis. He was one of a kind. Rest in peace. 




THE GOOD FIGHT

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

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

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

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

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

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

See you in court. 

Monday, November 17, 2014

I'M SORRY




"I'm sorry…so sorry….that I was such a fool"

David Ovalle and the Herald have the article:


Miami-Dade Judge Jacqueline Schwartz is apologizing after ranklingCuban-American lawyers with her election-night comments about beating a "nondescript Hispanic."
"I fully understand my comments could readily been seen as offensive to the community, something I never intended and that pains me greatly," Schwartz wrote Saturday in a letter to the Cuban American Bar Association (CABA).
"I should have never issued the post-election statement that has, understandably, caused do much concern. I retract the statement completely."
The judge also said she will ask the courts to "participate" in judicial diversity training.

Scene: Inner sanctum of power. Chambers of Chief Judge Bertie Soto:
Dramatis Personae: Judge Soto, judicial assistant. 

Judge Soto: "…and in conclusion, while I appreciate your desire for a larger courtroom and chambers, may I remind you that you are one of more than two hundred judges, and the assignment of chambers is based solely on seniority, and due to the fact that you were just elected to the county court and have not yet even been sworn in, the large courtroom on the 4th floor of the justice building, currently being used by Chief Administrative Judge Safyie, will not be available for your misdemeanor calendar. 
Yours, blah blah blah…you got that?'

JA: "Yes boss."

JS: Anything else?
JA: More complaints about the civil courthouse. Apparently a bird flew into an open window and grabbed a piece of paper off a desk and flew out. The attorney wants to sue. 
JS: We'll handle it tomorrow. 
JA: And Judge Schwartz is calling for courts to participate in judicial diversity training. 
JS: What the hell does that mean? Courts participating? Courts are inanimate objects. She wants Judges to get diversity training? 
JA: Apparently so. 
JS: So she insults the hispanic population of Miami, and feels that because of that, every judge has the problem she has?
JA: Yup. 
JS: They don't pay me enough for this job. 
JA: Should I send a reply?
JS: Yes. Tell her to take a flying ….nah. I will address it tomorrow. 
JA: Good night. 
JS: Good night. 

See You In Court, unless it is canceled due to diversity training. 

dream sequence…the page gets all funny and weird before becoming clear and we see President Obama standing in the Rose Garden in 2015. 

Obama: And I want to thank Justice Ginsberg for her many years of dedicated service to the court and this country. And I am proud to announce her replacement will be a distinguished jurist, a jurist who forever changed the landscape of American jurisprudence by coming up with the startlingly original and amazing idea of requiring all judges to undergo judicial diversity training. Now, I know in 2015 this seems standard practice, but I  take you back to that now famous letter, sent to the Cuban American Bar association in Miami, a letter which has since been safely ensconced with our most treasured letters of the republic in the federal archives, and a letter that set the tone and standard for the judiciary.  It is therefore with an enormous amount of pride that I nominate as the next Justice of the United States Supreme Court, J….


IA= INSENSITIVES ANONYMOUS.

"Hi and uhhh… welcome to the inaugural meeting of Insensitives Anonymous.  A world wide fellowship of men and women who help each other stop being insensitive. This is a closed meeting, and you are welcome to stay if you have a desire to stop being insensitive. If you have been insensitive in the last twenty-four hours, we ask only that you stay and listen. So, I will begin. My name is Jackie, and I am a judge, and I am insensitive to hispanics

Everyone in the audience: "Hi Jackie!"






Read more here: http://miamiherald.typepad.com/nakedpolitics/2014/11/miami-dade-judge-apologizes-for-saying-she-defeated-nondescript-hispanic.html#storylink=cpy

WHAT'S 25 YEARS WORTH?

Ken Anderson was a prosecutor in Texas (motto: "execute em all and let the good lord sort it out") who intentionally withheld exculpatory evidence and sent Michael Morton to jail in 1987 for a murder he didn't commit. 

In 2011 Morton was freed and exonerated after DNA conclusively proved he didn't beat his wife to death. In the same courthouse where Anderson wrecked Morton's life, and the life of Morton's young son who saw his father wrongfully convicted for killing his mom, Anderson accepted a plea offer to ten days jail and a $500.00 fine. 

That's what sending a man to prison for twenty-five years for a crime he didn't commit is worth in Texas. Not even one day for every agonizing year Morton served.  And a fine of twenty bucks a year. That's it. Yes Anderson was disbarred, but the price he paid for his criminal conduct is outrageously beyond the pale. Not even a year of probation. Anderson will be done with his sentence before Thanksgiving. 

In a state that likes, no make that loves, to send a message about getting tough on crime, what message does this send to lawyers who believe they are above the law? 

Don't mess with Texas? Ha! Go right ahead and mess with Texas, as long as you are a lawyer sending criminals- real or imagined- to prison. 

AN APOLOGY TO OUR CIVIL COLLEAGUES:
Longtime and careful readers of our blog know that in our view, it's hard to distinguish who we have less respect for: the hardworking jurist who puts in three tough hours denying motions before getting some lunch, hitting the golf course or the nail salon (or both) or the civil suits, creeping around, filing summary judgment motions, billing by the second,  and generally being a pimple on the butt of a civilized society. 
We were wrong. 
Civil lawyers can do some good. They can see a problem, a group of poor and innocent individuals being taken advantage of by a large and unfeeling corporation, and they can swoop in and put an end to this injustice. 

Like the class action case against RCI Hospitality Holdings, which happens to own Rick's Cabaret in NYC. The dancer/entertainers were not being paid as employees, but as independent contractors, who were forced to split their tips with the house, and other employees of the house, and after a hard night of dancing and being leered at by unattractive and impaired middle-aged men caught in a mid-life crisis, sometimes actually owed the house money. 

Good for them! RCI got hit with a sweet ten million for the dancers. 
Admittedly, we are not entirely familiar with this premise of an establishment where nubile young women dance for men. Must be a NYC thing. We are not as worldly as we sometimes appear to be. 

But this seems like the type of case, purely because of the underdog nature of the plaintiffs, that given the opportunity, we might have enjoyed working on, despite the civil nature of the proceedings. 

There's aways next time. 

Enjoy the week. See You In Court. 

Sunday, November 16, 2014

NFL WEEK 11

Ten days ago the Bengals lost to the Browns and Cat QB Andy Dalton had a 2.0 QB rating. Could it be any worse? 
We don't like to go against teams coming off a bye, but the Bengals have peaked. The Saints are coming off a tough OT loss and we like good teams to bounce back. 
Saints at home -7, which is a big number, but it's the way to go. 

And here's a shocker....the Bears stink, the Bears are coming apart, they have no D, their QB is awful, and they will beat the Vikes at home today giving 2.5. 

Speaking of dysfunctional,  look in the dictionary and see a picture of the 2014 Redskins. They are in disarray, a part of the team supports QB Colt McCoy and a part supports RGIII. But they are a better team than the visiting Bucs, who picked a coach- Lovie Smith, who will never make a team a real winner. He is a very good Def Co-ordinator, and just out of his league as a HC.  Skins are -7 at home and in some places -7.5. It's a big line and we like under 46 but are also giving the TD. 

Would you ever give points against the Seahawks? Maybe Denver or the Cheaters, but the Chiefs are at home favored by 1.5. Give the points; take the Chiefs; leave the cannoli. 

SURVIVOR SCANDAL!!! We still have 4  TWO great players alive in the survivor pool at week 11: Plea D and Dustin Tischler.  An independent commission headed by Ken Starr reviewed the results and confirmed that we missed Fake Alex Michaels losing in week seven with the Chargers and Grieco losing in week eight with the cowpokes. You're out- it's not personal, it's strictly business. 

The match-ups are tough this week. In our big (2k buy in) Survivor pool in Vegas, we are seriously considering the Bears, the Redskins, but will probably go with the Saints.  Update: our partner convinced us to take the Bears. Wheew. Dodged a bullet. 

Both Tischler and Plead D took the Steelers so we will have to wait until Monday night to see. 


Friday, November 14, 2014

THE MESSAGE IS THE MEDIUM

Broward charges for accessing it's clerk's website, unless you use the terminals inside the courthouse. 

It's a money grab pure and simple despite the fact that the Florida Constitution guarantees unfettered access to public records.

Broward claimed they had the first drug court in the nation, until our Captain straightened them out on his blog post Thursday.  Miami-Dade Drug court was the first in the nation. The court was set up through the cooperation and foresight of Janet Reno, Bennett Brummer, and the late Judge Stanley Goldstein who was a gem of a man. 

Broward arrests people for feeding the homeless. 

Have an innocent client in Broward? Their State Attorney (unwritten) policy is to "let the jury decide". 

You couldn't pay us enough to live and work in that insane asylum. It's pure madness, with a nasty, evil bent. 

DOM is covering a big federal trial, with snitches, and drugs, and former cops and a defense attorney doing a "My Cousin Vinny" take off. We need more humor in Federal Court. 

DOM also had a post on the lack of transparency of Supreme Court Justices. They exempted themselves from the rules that cover the rest of the federal judiciary, and they don't have to explain why they recuse themselves from cases. The article seeks more transparency from the court and the justices. 

We say there should be less transparency
The justices should sit behind a screen and ask questions, ala "The Dating Game."
Their opinions, when issued, should be encoded and the lawyers should have to scramble to get the code key to find out who won. 

Court should be held in "undisclosed locations" ala Dick Cheney circa 2001. 

In sum: Bring a little Broweird to the Supreme Court. 

And finally, if you're planning on traveling to the City of Lights, which we do frequently, there is a tiger on the loose in Paris! And it's not the golfer, but the big cat. ABC reports here. 

We are imagining walking down the street in our favourite arrondissement,  a cup of coffee in one hand, a loaf of bread and Le Monde in the other, and trying to explain in our limited French that we just saw a Tiger stalking around.  Maybe we'll just stay at the Grosvenor  House in London until the big cat is caught. 

Enjoy the weekend. 

Thursday, November 13, 2014

NATIONAL BREAK UP DAY

There are some relationships, and the inevitable break-up, that have become part of our popular culture and consciousness. For those old enough to remember a world without Starbucks and texting, Elizabeth  Taylor and Richard Burton is the seminal relationship-breakup-remarriage event of the last century. 

Katie Holmes left weirdo Tom Cruise. Jennifer Aniston and Brad Pitt never made it.  Elin Nordegren threw out Tiger, and he hasn't been the same since. 

But in our humble opinion, the most culturally significant break up of our time,  occurred today, November 13, year unknown, when "Felix Unger was asked to remove himself from his place of residence...and that request came from his wife."  Thus was born one of the best sitcoms ever, and dozens of philosophical gems, as well as some of the best lawyering you will ever see. Observe below:







Best cross examination: "When you ASSUME... you make an ASS out of U and ME" It starts at 3:17 of the clip. Plus, it always pays to bow to the court. And the actual "assume" incident is at 4:20. We've been waiting 30 years to use this. And of course there is the valuable lesson all of us always need to keep in mind: calling one witness too many, and asking one question too many. This should be required viewing in every law school. 






Best way to end a cross? "Get off the stand, you make me sick!
The cross of the stooge of management, corporate puppet, the nameless, faceless little gray men trying to claw their way to the top, begins at 3:15. 

"THERE ARE NO WINNERS IN THIS CASE"


THE CAPTAIN REPORTS:

IT'S A SAD, SAD, SAD, SAD, WORLD .........

Just over three years ago, in July of 2011, the fate of two people, who did not know each other, collided at the intersection of Lejeune Road and Aledo Avenue, in Coral Gables, at 4 o'clock in the morning.  The results were nothing short of catastrophic.

Ace reporter David O'Valle, (who recently hit the 5,000 mark for twitter followers), covers the story in the Miami Herald here. 

Peter Munoz, 27, was a police officer employed by the Coral Spring PD.  By all accounts he was a good cop with a great career ahead of him.

Jenny Gutierrez, 23, was a single mother of a three year old girl.  She was employed as a paralegal and she was also enrolled in school at Miami-Dade College.  By all accounts she was a good person, a great mother, and she was working hard to provide for a better life for herself and her young child.

Munoz was traveling Southbound on Lejeune.  According to the accident reconstruction investigation, he was driving his vehicle at a maximum speed of 56 mph in a 40 mph zone.  He was also under the influence of a large quantity of alcohol.  His blood, taken after the crash, showed a BAC of .229, nearly three times the legal limit.

Gutierrez was traveling Eastbound on Aledo.  She entered the intersection immediately in front of the path of Munoz.  She violated his right of way.  She was also operating her vehicle with a suspended license.  Toxicology results performed by the MEs office indicated positive for both Xanax and Cocaine.

The investigation also showed that there was a 6 to 8 foot hedge that likely obstructed the sight of Gutierrez's vehicle as she was pulling into the intersection to turn left and head Northbound on Lejeune.

Munoz was fired shortly after his arrest.
Gutierrez was pronounced dead at the Ryder Trauma center two hours after the crash.  Her daughter is being raised by Gutierrez' mother.

In 2012, defense attorney Alan Ross filed a Motion to Suppress the Blood.  Judge Murphy, after hearing testimony that the first officer on the scene did not detect any signs of impairment, that the THI did not believe he had PC for the search warrant when he submitted it to the judge, and after finding that the warrant, (which was the basis for the collection of the blood evidence) lacked key essential facts, granted the Motion to Suppress.  The State dropped the DUI Manslaughter charge.

This week, the state dropped the remaining charge of Vehicular Manslaughter.  The speed, by itself, was not enough to establish the element of recklessness necessary to obtain a conviction.  (See Luzano v. State, 3D13-1678, Oct. 1, 2014).

We have been quoted in the press on more than a few cases as saying that "there are no winners in this case".  It appears that that statement certain would apply here.

It's a sad, sad, sad, sad, world.

HAPPY 25TH BIRTHDAY TO MIAMI DADE DRUG COURT .......

Crack reporter for the DBR, Julie Kay, wrote a great story about 3rd year law student Shayna Finkelstein, who recently was in Miami with her University of Florida mock trial team.  The team won first place in an ABA southeast regional mock trial competition.  The younger Finkelstein, daughter of famed Help Me Howard Broward PD Finkelstein hopes to follow in her father's footsteps some day and says she will be applying for a job as a PD in Miami and Palm Beach County.

But, here's the problem with Kay's article.  In it, she states that Finkelstein "was instrumental in forming Florida's first drug court ... in Broward County".

Veterans' of the Metro Justice Building (MJB), (yes, that was the name of the building from it's opening in 1962 until it was renamed in 1992 after six term State Attorney Richard E. Gerstein, who served as the elected chief prosecutor from 1956-1977), know that the "first" Drug Court in Florida, and in the United States, opened in the MJB in 1989.   It wasn't until two years later that Broward followed suit; (Las Vegas had the second ever drug court, with Broward's coming next after that).  In the past 25 years, the overwhelmingly successful Miami-Dade Drug Court has had only four judges including Judges Stanley Goldstein, Jeffrey Rosinek, Deborah Labora-White, and current Drug Court Judge Jeri Beth Cohen. 

Julie's a great reporter, but she needs to get her facts straight.   Credit goes out to Chief Judge Gerald Wetherington, Admin. Judge of the Criminal Division Herb Klein, Public Defender Bennett Brummer, and State Attorney Janet Reno for having the vision to create the ground-breaking program 25 years ago.  Their slogan is appropriate: "Miami's Drug Court - saving lives, one addict at a time".  Happy Birthday Miami-Dade Drug Court - you've come a long way.

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

Wednesday, November 12, 2014

WITH AGE COMES IRRELEVANCE

How many of us paused yesterday at 11 am to remember the end of the war to end all wars- which as we all know, occurred on 11/11/18  at 11 am? 

And if you didn't do it, why not? 

Our Favourite Federal Judge, the honorable Richard Kopf, has a long vignette on his blog Hercules and The Umpire from a former federal DEA agent, now a private investigator. It's worth a read. 

The agent speaks favorably about a tough cross examination from a defense attorney who used the old "you lie for a living don't you?" cross. Really? The effectiveness of that cross went out the door sometime in 1975. Is there any undercover agent on earth who doesn't respond "I lie when I'm undercover. I don't lie in court" or words to that effect?

In another post referencing a public incident where two lawyers in their 70's got into a fight at a country club, Judge Kopf wrote this gem:
"With age comes irrelevance. With irrelevance comes seething unfocused anger at the unfairness of it all. There is no known antidote. But, it helps to have grown up before you grow old. Too bad for me."

We've been thinking a lot about growing old(er) these days. 
First, there is that recognized phenomenon that time appears to move faster as you age. Seasons fly by, and then years and then decades. It's disconcerting. 

Second, and more troubling, is the recognition that you are running out of chances. If you fail in your 20's, 30's, or 40's, at either business or in your personal life, there still seems like plenty of time to try again. But when you are flying through your mid-50's or 60's, your next business venture, or your next romance seems like it could be your last, so you'd better choose wisely. It's added pressure when that's the last thing you need. 

But with age comes experience, and with experience comes perspective, and that is such a good thing. Because once you have perspective, you make fewer mistakes. 

In his famous commencement speech at Stanford, Steve Jobs had this to say about death:

When I was 17, I read a quote that went something like: “If you live each day as if it was your last, someday you’ll most certainly be right.” It made an impression on me, and since then, for the past 33 years, I have looked in the mirror every morning and asked myself: “If today were the last day of my life, would I want to do what I am about to do today?” And whenever the answer has been “No” for too many days in a row, I know I need to change something...

Remembering that I’ll be dead soon is the most important tool I’ve ever encountered to help me make the big choices in life. Because almost everything — all external expectations, all pride, all fear of embarrassment or failure – these things just fall away in the face of death, leaving only what is truly important. Remembering that you are going to die is the best way I know to avoid the trap of thinking you have something to lose. You are already naked. There is no reason not to follow your heart.

Follow you heart. Stay Hungry. Stay Foolish. 





Tuesday, November 11, 2014

11th Hour 11th Day 11th Month

UPDATE: We have two new judges. See the Captain's post yesterday. 


In Flanders Fields the poppies blow
beneath the crosses row on row
That mark our place; and in the sky
The larks, still bravely singing, fly;
Scarce heard amid the guns below,
We are dead. 
Short days ago, we lived, felt dawn glow;
Loved and were loved 
and now we lie
In Flanders Fields. 
If Ye break faith with us who die,
We shall not sleep, though poppies grow 
In Flanders Fields.
John McCrae
WWI Solider who died on the front in France of pneumonia in 1918.


















(Re-run from last year and this is the seventh  Veterans Day we've run the video. And while you're at it click here and read Judge Jon Schlessinger's moving tribute to his Uncle Edward Kielich, who was buried with full honours at Arlington Cemetery. 


They’ve seen things we could never imagine.

They’ve done things people were not meant to do.

They risked their lives so we can live in freedom.

They are our veterans and today we honor them.


95 Years ago today, on the 11th hour of the 11th day of the 11th month of 1918 the guns of the great war fell silent.

Our Boys, The Doughboys, lie at rest in places with names like Flanders, Bony, and Belleau. They died on battlefields named Marne, Somme, and Verdun. Almost 5 Million Americans were in uniform for World War I, and over 100,000 died, and more than half of those deaths were on the battlefield.

It was the first time American boys would be asked to save Europe. It would not be the last.

Our nation has answered the call time and time again. Mostly for the right reasons, but not always. Yet we’ve always answered the call. And the price has always been high. Our young men and now our young women lie in battlefield graveyards all over the world, never to grow older, never to see the results of their sacrifice. Sacrifice given with the full assurance that their country would never let them down and would never forget. Sacrifice that Abraham Lincoln called "The last full measure of devotion."

Today we remember. And at 11 am, stop for a moment and take two minutes and reflect on the good things in your life. Think of your home, or your children, or your parents, or the freedoms you enjoy, and your comforts and remember none of that would have been possible without them.

Thank you. It doesn't seem enough, but Thank You, each and every one of you.

Monday, November 10, 2014

Governor Scott Names Two New Circuit Court Judges


THE CAPTAIN REPORTS:

AND YOUR TWO NEWEST CIRCUIT COURT JUDGES ARE .....

Judge Rodolfo A. Ruiz II
Jason Bloch

Today, Governor Rick Scott named County Judge Rudy Ruiz and Assistant County Attorney for Miami-Dade County Jason Bloch as replacements for Judge Darrin Gayles and Judge Beth Bloom.  Prior to his appointment as a Judge in 2012, Ruiz also served as an Assistant County Attorney for Miami-Dade County.  Before that, Ruiz worked for White & Case.  He began his legal career as a law clerk to Federal Judge Federico Moreno.  Bloch's entire career, from 1994 to the present, has been with the County.

Both Gayles and Bloom have moved to the United States District Court for the Southern District of Florida.  Judge Gayles was sworn in on June 23rd of this year; Judge Bloom one week later on June 30th. Judge Gayles has been assigned to the Miami Division; Judge Bloom to the Fort Lauderdale Division.

On September 10th of this year, the Judicial Nominating Commission (JNC) of the Eleventh Judicial Circuit, submitted ten prospects to Governor Scott's office for consideration.  Five of those ten are County Court Judges.

The nominees were:

Ayana N. Harris
Laura Anne Stuzin
Jason Bloch
Judge Jason Emilios Dimitris (2013)
Judge Rodolfo A. Ruiz II (2012)
Judge Charles Kenneth Johnson (2010)
Diana Vizcaino
Judge Wendell Graham (1994)
Judge Lourdes Simon (2010)
Lauren Fleischer Louis 


JUDGE GLADYS PEREZ RESIGNS .....

County Court Judge Gladys Perez has submitted her letter of resignation to Gov. Scott.  Her last day on the bench, according to the DBR, is November 30, 2014.

Perez told the DBR that she has accepted a job at Shutts & Bowen in the firm's class action and mass litigation defense practice group.

Judge Perez was appointed to the bench by Gov. Crist in 2009 and ran unopposed in Group 37 in 2012.  She sat in the County Civil Division at 73 West Flagler. (Did the failure of the Court Bond initiative have anything to do with her decision; or was it all about the Benjamins?).  Her term would have run through the end of 2018.  The JNC will now have to send up to six names to Governor Scott who will then name her replacement.

JNC BACK AT WORK:

With the appointment of Judge Ruiz and the resignation of Judge Perez, Governor Scott will now have two open County Court seats where he will name the replacements. That means the JNC will have to begin the whole process anew.  Stay tuned for the announcement of when those applications will be due.

POST ELECTION ANAYSIS: WHY DID CRIST LOSE .....

The Daily Kos provides an excellent analysis as to why Charlie Crist lost the election to Rick Scott.  Their verdict ..... Scott had more votes.  Seriously, while low Democrat voter turnout has been discussed, in fact, the Dems turned out in numbers very similar to 2010.  The real reason that Scott won is because of the Republican turnout.  It was much higher than anticipated in both the Panhandle and in the area of Duval (Jacksonville) County.  A good read for all of you poli sci majors.

JUDICIAL EFFICIENCY .....

If closing cases is the best measure of judicial efficiency, then Judge Robert Scola gets the award for the Southern District of Florida.  Scola was appointed to the Federal bench by President Obama in 2011.  According to TRAC, he closed 536 cases in the 12 months ending June 30th of this year.  Scola's reputation when he was in State court was always as a no nonsense judge.  Kudos to Judge Scola.

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


PUT YOUR HANDS IN THE AIR AND WALK AWAY FROM THAT PLATE OF FOOD!

"Whomever gives food to the poor will not want, but he who hides his eyes will get many a curse."
Proverbs 28:27

"When I was hungry, you fed me. When I was thirsty, you gave me drink. When I was a stranger, you welcomed me."
Matthew 25:23. 

Not In Broward. 

You can share many things in Broward- ideas, talk, money,  rides to work, perhaps even bodily fluids during spring break. 

But you can't share food. Nope. It's a crime, because after all, it's Broweird. 

Last week the Gestapo Police charged three men, two pastors and one 90 year old gentlemen, with feeding the homeless in Broward, where kindness and charity are crimes. 

PUT YOUR HANDS IN THE AIR AND WALK AWAY FROM THE PLATE OF FOOD!

From one of the accused in the report here:

One of the police officers said, 'Drop that plate right now,' as if I were carrying a weapon," said Abbott, who runs a nonprofit group called Love Thy Neighbor, Inc. "It's man's inhumanity to man is all it is."

You can almost imagine the city commission meetings up there:
"We can ban the United Way, shut down those pesky charities and ask for some minimum mandatories for even associating with the ACLU. This business of helping people is going to END now on our watch! Ft. Lauderdale will assume it's rightful place as the meanest city in the world!"
Then the commission members jump to their feet in ecstasy,  visions not just of hundreds of homeless people being arrested, but their benefactors being imprisoned as well. 

And sitting in the corner, nodding with a small smile, the man the myth, the legend, the prosecutor who refuses to ever exercise discretion and who directs his minions to try even innocent defendants with the credo "let the jury decide" Mike Satz. 

Wonderful town they have up their, if you're not poor, hungry, or generous. 

See You In Court. 

Sunday, November 09, 2014

NFL WEEK TEN

Waiting on one more survivor before we post the picks. 

We like the Pack at home -7 and below 53.5. The bloom is off the Bears. They stink. They need a QB.

The Fins have been red hot. But a road game against the Lions coming off a bye week is a bit much. Take the Lions -2.5 at home. 

Rams at Cardinals. The Birds are due for a let down, so we don't like giving up the 6.5 at home. But we like the over 43. Roll with that. 



Friday, November 07, 2014

TAKE FOOT. OPEN MOUTH. INSERT.

IN WAR: RESOLUTION. IN DEFEAT: DEFIANCE.  IN VICTORY: MAGNANIMITY. IN PEACE: GOODWILL.
Winston Spencer Churchill.

Judge Jacqueline Schwartz, if nothing else, has shown us that she is no WSC.

In Victory? Piss off the Miami Hispanic community.
This is what she said about her reelection:

When Schwartz won reelection  Tuesday over lawyer Frank Bocanegra, she issued a statement saying voters had "gone past the days when any nondescript Hispanic could go on the ballot and defeat any Anglo sitting judge."

David Ovalle's article on Schwartz's latest misstep is here.

The Cuban-American Bar Association fired back:

In a letter sent to her on Wednesday, the Cuban American Bar Association said "the statement is incompatible with your duties as a judge and with the dignity of judicial office."
Her "troubling" words suggest that "some or all of your Hispanic colleagues on the bench achieved their positions by virtue of a 'nondescript Hispanic name' and not because of their hard work, professionalism and other qualifications," CABA President Ricardo Martinez-Cid wrote.

Schwartz tossed the letter in the trash before going out for a lunch of Arroz con pollo, or maybe as David Ovalle likes to muse, arroz con mango.  (she didn't really do that as far as we know).

Remember that during the campaign Schwartz  told a store clerk to "Go F themselves" when they refused to take down a large Bocanegra sign. (See our post in September "...And the horse you rode in on."

Next up for Judge Schwartz: why battered women need to toughen up and stop complaining.  

In other news, the Lunch and Learn Seminar for November on "Ethics and Ethnic Sensitivities in Miami" to be taught by Judge Jacqueline Schwartz has been unfortunately postponed until never and a day.

 See You In Court, where gone are the days....nah. Not gonna do it. Wouldn't be prudent.    

 

Wednesday, November 05, 2014

OMMMMMM

Take a deep breath. Breathe in....hold it.....exhale. Breathe in..... hold it....exhale. Ommmmmmmm. 

It will all be ok. 

Before we begin, lets take a minute to remember our colleague Sy Gaer. His birthday was November 7. Happy Birthday SY. Have one on us. For you newbies, go to the second floor, face the elevators, turn 180 degrees. Look up and read the wonderful words written by Judge Milt Hirsch. 

So where are we today?

1. No marijuana in Florida (sorry Jeff Felier). 
2. No civil courthouse. (Sorry Bertie).
3. Four more years of Rick Scott. Can't say Governor Scott has done a bad job on judicial appointments. He hasn't. He hasn't stuck to the playbook of always elevating a county Judge to give him a second appointment, and he has appointed many fair judges from both sides (prosecution and defense) of the aisle. 
4. But no more federal judges. It's hard to think the Senate would appoint Judge Scalia today if Obama nominated him. Mark our words, the Senate is going to shut down the judicial appointment process.  Beth Bloom and Darrin Gayles should close the door behind them, because they just made it.  

So what do the Republicans intend to do? Easy: shut down the government, cut taxes, expect the CDC to cure Ebola (while shut down and bankrupt) and blame Obama if they don't. Seal the border from Ebola infected ISIS fighters streaming in from Mexico, pass numerous laws absolutely forbidding the use of Sharia law in US cases (because that happens all the time, right?), and blame the extremely slight, barely undetectable elevation of global temperatures on the increased use of lights at the White House during the current administration. 

Abortions will be outlawed. 
Homosexuals condemned and tarred and feathered. 
The flag will be protected while stem cells (that could cure disease if the CDC was open and funded) will be outlawed. 
Immigrants will be forced to wear a  large yellow "I" and their attempts to attend school, go to the hospital, drive, eat and breathe will be criminalized. 

Iraq will be invaded agains just because it's a good way to divert attention and get money into defense contractors, while grants to poor families and hungry children will be cut, because you get what you deserve damn-it. 

Taxes for hard working Americans earning over a million dollars a year will be cut, because it takes a lot of work to earn that money, while taxes will be raised on single working mothers earning less than fifty-thousand dollars a year, because no one forced them to be single, a parent and poor. 

And just because they can, that damned health care law will be repealed because it has wrecked the economy (not) and cost Americans jobs (double not). 

Bridges and roads and infrastructure will be repaired through prayer,  because taxes must be cut. And when tunnels collapse and bridges crumble, Obama will be blamed because it happened on his watch. 

And most importantly, most critically, government will get the hell out of the way of Wall Street and the Koch Brothers, because that's all that matters. Regulations will be repealed. Clean coal (no such thing) will save the day, the pipeline from Canada will be built because global warming is a Chinese conspiracy to spread drugs, homosexuality, and godless communism in the free world. 

And finally- we will stop listening to the so called experts and scientists on things like disease, global warming, science, health care, and ecology - because they  are all in Putin's pocket- and get back to what made this country great: prayer and hard work and no taxes. 

We are praying.  That's for sure. 

See you in court. 


Tuesday, November 04, 2014

ELECTION DAY 2014


THE CAPTAIN REPORTS:


UPDATE: RESULTS & ANALYSIS ($$$$$) BELOW .....
As of 7 am this morning, more than 3.1 million voters had already cast their ballots in Florida.  Absentee Ballots received by the election departments' total 1.3 million and an additional 1.8 million showed up during early voting.  Broken down by party, it's 1.33 million Republicans; 1.22 million Dems and 560,000 with NPA.

RETURNS (98% reporting):

County Court Judge:
BOCANEGRA - 179,600 - 42%
SCHWARTZ    - 243,470 - 58%

Does the money spent make a difference?  What do our readers think?  Incumbent Judge Jacqueline Schwartz spent $380,884 on her campaign including $315,000 of her own money.  In comparison, Challenger Frank Bocanegra spent $93,124 including $32,000 of his own money.

COURTHOUSE BOND
YES                 - 165,838 - 36%
NO                  - 293,840 - 64%

NORTH OF THE BORDER
In Broweird, there were two races for Judge; one Circuit and one County.  In the Circuit Court race, Dennis Bailey defeated Rhonda Sokoloff 50.6% - 49.4% (4,300 votes); and in County Court, Incumbent Ian Richards has 177,067 votes to Challenger Claudia Robinson's 178,084.  They are separated by a quarter of a percent triggering a recount in that race.

ELECTION DAY SPECIAL .....

Beginning in 1980 and continuing through 2004, over the course of seven consecutive presidential elections, a Bush and/or a Clinton appeared on the national ticket for President/Vice-President in each election.  The string was finally broken in 2008, when Barack Obama beat out Hillary Rodham Clinton in the Democratic primaries and secured the nomination of his party.  Two years from now, the cycle may repeat itself and we could again be talking about both a Bush and a Clinton on the national tickets of their parties ....

But for now, you'll just have to settle for a Schwartz and a Bocanegra.



Many of you have already cast your votes either by way of Absentee Ballot or by Early Voting.  For those procrastinators who waited until today to vote, the important races, besides the County Court race alluded to above, includes the following matchups:

Governor: (SCOTT WINS 48%-47%)

Does the money spent make a difference?  The final numbers are not yet in, but as of two days ago, here is what we know:

1. This was the most expensive race in gubernatorial history.
2. Scott and his PACs spent $96 million dollars.
3. Scott reported $10m in expenditures in his campaign account; meaning $86m was spent by PACs.
4. By comparison, Crist and his PACs spent $49 million.
5. Crist reported $9m in expenditures in his campaign account; meaning $40m was spent by the PACs supporting him.
6. $114m was spent on TV ads alone by the two parties; (2-1 in favor of Scott's camp).


Will you be voting for the candidate who is or the candidate who was?  The choice is Rick Scott, the Incumbent, versus Charlie Crist, the former Governor, and current challenger.  Of course, if you didn't know that, well then, you must not own a television set.

Attorney General: (BONDI WINS 55%-42%)

Will you be voting for the Incumbent who has spent most of her elected time in office, (not to mention the valuable resources of her legal team), doing everything she can to make sure that gays cannot marry in the State of Florida or will you be supporting her opponent?  The choice is Pam Bondi versus George Sheldon.

Constitutional Amendment One: (PASSED WITH 75%)

AKA The Florida Water and Land Conservation Initiative.  It deals with our natural resources.

Constitutional Amendment Two: (FAILED WITH 57.5%)

AKA The Medical Marijuana Amendment.  Backed and financed by multi-millionaire personal injury attorney John Morgan, this Amendment polled at around 85% for most of the Spring and Summer.  That was until millions of dollars of out of state PAC money coming from a few billionaires like the Koch brothers and casino magnate Sheldon Adelson funded the Drug Free America group attempting to defeat the amendment.  The latest numbers show about 61% support for this amendment; it takes 60% for the measure to pass.

For a more comprehensive analysis of Amendments One and Two, I'll throw it over to Mr. Cheeseburger in Paradise, who does a much better job than I could ever do at explaining these two very important Amendments:



Constitutional Amendment Three: (FAILED WITH 48%)

AKA The Lame Duck Court Packing Amendment.  This amendment was addressed by the Tampa Tribune recently.  They described the amendment as one that was supported by " ... Republican legislators as a solution to a pending crisis on the Florida Supreme Court. Three of seven justices are expected to retire simultaneously in January 2019, just as a new governor could be taking office. But the amendment placed on the Nov. 4 ballot by the Legislature that would give outgoing governors carte blanche to pack the court on their way out the door is unacceptable. Amendment 3 is one more legislative attempt to push partisanship into the court system, and Florida voters should reject it." 

Miami-Dade Ballot

Locally, the most talked about race is not about whom to select for County Court Judge; instead, it's whether to support a $393 million Bond measure which would fund a new Civil Courthouse to be built somewhere in downtown Miami.  Chief Judge Soto and a host of attorneys and judges have been hosting speakeasy type get-togethers to drum up support for the Bond as well as to raise money to finance the advertising campaign.  The current courthouse is something like 200 years old (j/k - it was built in 1925) and has 28 stories and three bathrooms.  The bond, if passed, would increase the millage rate by about 0.09, or $18, for a home valued at $200,000.

If you have not already done so, get out there today and exercise your right to V-O-T-E. 

And because this whole damn election season has brought us nothing more than $90 plus million dollars worth of false and negative ads from both state parties and their funded PACs, we decided to leave you with this heartfelt moving story that took place this past weekend in Cincinnati, Ohio .....  

Why was a Division III woman's basketball game between Mount St. Joseph's and Hiriam College that would normally put 50 fans in the stands instead moved to Xavier University's 10,000 seat basketball's arena; (PS. they sold out the 10,000 tickets in just one hour)? Read the story and watch the video here.



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