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

Wednesday, February 11, 2015

EN BANC

On Thursday the 3rd DCA will hear the appeal of  former FBI agent John Connelly en banc (literally "we the many are upset at those the few"). 

Background:  John Connelly was an FBI agent in Boston. 
For most of the 1970's, 1980's and 1990's the FBI was chasing the boss of Boston- Whitely Bulger and his Winter Hill Gang. 
During that time, it was alleged that Connelly became a member of Bulger's crime organization. Connelly was known,  in Boston lingo,  as "a worka". 

Bulger had his fingers in everything, including Jai Alai in South Florida. On orders from Bulger, Connelly and Steve "The Rifleman" Flemmi killed CPA John Callahan and Jai Alia owner Roger Wheeler. ("The Rifleman": Is that the best nickname for a hired killer or what?)

If you want to read the definitive book on Whitey Bulger, read "Whitey Bulger" By Boston Herald reporters Kevin Cullen and Shelley Murphy. 

In 2005 Connelly was tried in Miami and convicted. And that's when the problems started.  Connelly was convicted for second degree murder and the statute of limitations may have run on that charge.  Judge Stan Blake denied the motion for discharge post verdict, but then PD Appellate lawyer extraordinaire  Manny Alvarez joined the fight, never a good sign for a faltering prosecution. 

The 3rd DCA found the case so troubling that  Manny Alvarez had to file a writ of mandamus with the Florida Supreme Court to get them to issue a ruling.  The supreme court did just that, ordering the 3rd to issue an opinion. In May 2014, the 3rd ruled 2-1 in favor of Connelly.   Shepherd and Suarez for the majority (24 page decision). Rothenberg, dissenting (47 page dissent). 

We grant Connolly’s motion for rehearing, vacate the conviction and sentence in Case Number 01-8287D, and remand with instructions to discharge him because the trial
court impermissibly relied on an uncharged firearm to enhance the only crime for which he was convicted. Without the fundamentally erroneous reclassification, Connolly’s conviction for second-degree murder as a lesser included offense of

first-degree murder was barred by the applicable statute of limitation.

Reflect on that bit of spectacular lawyering for a moment. Alvarez, has, to use specialized legal vernacular, kicked some ass in this case. 

The state moved for an en banc hearing, and that rare procedure will take place this Thursday. All the seats at the 3rd are sold out, but you can watch it on the internet. 

Here's where it gets fun. Alvarez filed a writ of habeas corpus which is now in the Florida Supreme Court.  Alvarez wants his client out on bond, since the 3rd's original opinion didn't just reverse the conviction, but they ordered Connelly discharged. 

Last week the Florida Supreme Court issued an order requiring the prosecution AND THE 3RD DCA to file a response to the writ. 
Take a moment. Reflect on that. Yes, you read it correctly. The Florida Supreme Court has required the 3rd DCA to file a response to the PDs petition for a writ of Habeas Corpus. 

Petitioner has filed a petition for writ of habeas corpus. Respondent is requested to serve a response to the above-referenced petition. Further, because this Court has determined that it would be helpful to the resolution of this case to have the benefit of a response from the lower tribunal, the Third District Court of Appeal is requested to file a response as well. See Fla. R. App. P. 9.100(e)(3).

So who writes the brief for the 3rd DCA? If we were assigning it, we'd have Emas do it. He's the brightest of the bunch. 

Great job by Manny Alvarez. Is someone nominating him for the FACDL's Rodney Thaxton Against All Odds Award? 

See you in court. 




24 comments:

CAPTAIN JUSTICE said...


To be fair, it took a team of great lawyering to get to where the case is today and there were two others on the team that deserve recognition for their work on this case.

Manny Casabielle and Bruce Fleisher were the trial attorneys who spent two months trying the case before Judge Blake.

Cap Out .....

Rumpole said...

The "to be fair " editorial is not correct.
First/ this is about the appeal for which thise lawyers had nothing to do with.
Second. They lost. We've been there and done that. But we don't celebrate it nor do we buy into the loser attitude of "hey we tried our best ". So if we were the lawyers who lost , we wouldn't want the publicity.
Third. If you read the opinion and Rothenberg's dissent there is a lot of language about missing objections and failing to protect the record and deciding the case on fundamental error. Not really the type of lawyering we would want to trumpet.

To be fair, that is.

Anonymous said...

ouch

Anonymous said...

You gonna let him talk to you like that Cap? LOL!

Great response Rump.

BTDT

Anonymous said...

"To be fair" "Captain Justice" the appellate process has taken longer than the process to get to trial. If you read Rumpole's post, there has been a direct appeal litigating the issues, a motion for rehearing by the PD at the 3rd DCA which got the case reversed, and a motion for rehearing by the state which has resulted in the en banc Rumpole speaks of. Additionally, if you look at the Florida Supreme Court web site, there are currently 2 open cases filed by Alvarez for the defendant. Good appellate lawyering doesn't take away from trial counsel, but the work on the case quite obviously didn't end with trial counsel. What is the problem "Captain Justice" with actually giving someone at the PDs office some credit for a job well done without qualifying the complement????? I think Alvarez has earned it and I bet, if asked, trial counsel and Connolly would agree.

Anonymous said...

fleisher is in well over his head. Other then his seniority which gets him court appointments which he lives on, he is a walking Rule3. Just read the dissent about how he blew the case in failing to protect the record,missing objections.The 3d decided the case on FUNDEMENTAL error. Which means the trial lawyers failed their client.

Anonymous said...

what is the against all odds award, who are past nominees and winners, or when can i get such information, please?

Anonymous said...

The Professor says:

The 3rd will argue (through retained counsel) that the opinion is subject to rehearing and is therefore not final. No finality, no release. Simple. The Habeas action requires a very terse and quick response. There will not be a release of the defendant until the rehearing is complete. Expect the panel to be reversed and Rothenberg's dissent to adopted as the majority opinion. Also expect the Supreme Court to deny review

Anonymous said...

Have to say that Connolly is a total piece of shit.

Anonymous said...

Wow, never thought I would see the day when Rumpole trashed Manny C. and Bruce Fleisher. That's pretty sad, because they are good men and excellent lawyers.

Anonymous said...


Sounds like you are not being fair to the trial attorneys, Rumpole. "To be fair", but for Casabelle and Fleisher getting the results they did, Connolly would be spending the rest of his life behind bars.

You alluded to the appellate court opinion, which I read. It states, in pertinent part:

"Connolly’s only avenue of relief was to object to the inclusion of any lesser included offenses or instructions on second-degree murder as barred by the statute of limitation, which the record
clearly shows his defense counsel strenuously and continuously did"

So, Casabelle and Fleisher got that right. Great lawyering resulted in an acquittal to 1st degree murder, and a conviction to second. Otherwise, Connolly leaves prison in a pine box.

The opinion goes on to state:

"As we explain below in this opinion, reclassification upon conviction of a lesser included offense to Count 2 conspiracy
would have been legally supportable had Connolly not, in fact, been acquitted of
that charge. In that context, Connolly was appropriately charged with carrying his
service weapon during the commission of the crime of conspiracy because it is an
ongoing offense taking place over a period of time. See generally, Rosen v. State, 757 So. 2d 1236 (Fla. 4th DCA 2000) (explaining application of statute of
limitation to continuing, as contrasted with discrete, offenses), and cases cited
therein. During the conspiracy, Connolly met with his co-defendants and the evidence indicated that, while participating in these meetings, Connolly wore his service weapon. Reclassification for carrying a weapon during an ongoing offense
is legally supported. See section 3, infra. Connolly was, however, acquitted of the Count 2 conspiracy charge, rendering moot the merit of his pretrial motion to dismiss."

Again, but for the great trial lawyering, Connolly gets convicted of Count 2 and he is again leaving prison in a casket.

Finally, the court wrote:

"Had Connolly been convicted as charged in Count 2 of the first-degree felony of conspiracy to commit first-degree murder with a firearm, reclassification
under section 775.087(1) would have been proper based on that evidence."

Contrary to your comment, Cassabelle and Fleisher did not lose, they won and won big.

I agree that Manny Alvarez did some tremendous lawyering in the appeal and he should be commended for his legal acumen. But he is never where he is now, but for the success of the trial attorneys in the court below.

Anonymous said...

Amazing legal work. Thanks for the post but lets be kind to each other. All the attorneys who worked on the case deserve recognition. Remember:
"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat."

Rumpole said...

I didn't trash the lawyers. I responded to captain who I thought was kissing their ass.

I am deeply ashamed and embarrassed and hurt to the core and beyond on any case I lose. Its why I work to midnight and then get up at 4am and prepare some more. I never would seek any publicity or any pat on the back for any case I lost. Ever. I would assume those lawyers feel the same way.

Anonymous said...

This was an excellent, informative post until the trashing took over. Appellate lawyers specialize in finding errors so the trial lawyers will inevitably be fair game

CAPTAIN JUSTICE said...

Btdt: I would have responded tonight, but after reading the comments, it looks like 3:43 pm explained my point exactly.

Rump:

Take a chill pill my friend. "Kissing their ass". Jeez Louise. All I said was that "it took a team of great lawyering to get to where the case is today" and pointed out the other two lawyers on the "team".

I think Rump graduated from the Brian Williams School of Journalism.

Cap Out .....

Anonymous said...

Caps about to lose his access.

Anonymous said...

Bruce loves to tell war stories He is an average trial lawyer but he is a trial lawyer which is more then most of you can say. Manny c on the flip side is a good lawyer.

Anonymous said...

Last I checked a 40 year sentence for a 70 year old man is a life sentence. Hard to argue that's a trial win. If John Connolly doesn't die in prison it will be because of Manny Alvarez. And in spite of failure below to preserve issues during trial or even file the post trial motion to dismiss timely. This case was PCAd initially. Those of us who practice appellate law know how rare rehearing after a PCA is, let alone a reversal after a PCA, let alone convincing the FLSC to force the 3rd DCA to stop dragging their feet. And the professor is absolutely wrong about what will end up happening. The 3rd en banc may indeed rule for the State, that wouldn't shock me. But if they do the FLSC will absolutely hear the case, and they will reverse. They have clearly signalled they are paying attention. They've communicated to the 3rd that this isn't a case they can rule for the State on the grounds that the guys a criminal and we on this Court don't let out criminals. On the law the States argument that the statute of limitations can be avoided because Connolly carried his service weapon when he discussed the killing and that is actual possession of a firearm during the commission of the murder is insupportable. If it gets to FLSC it'll be a 5-2 decision for Connolly, only Canady and Polston dissenting. Thanks Rump for bringing light to Mannys great work.

Anonymous said...

Every post:

Story
That lawyer sucks
That lawyer really sucks
No, you suck
What day is it?
Did you see what someone said somewhere else?
Shumie
Why is everyone so mean?

Anonymous said...

The Professor said:

9:35 - I disagree with you as to the FLSC. The Habeas is an original action that requires only a showing of probable cause for the issuance of a Rule to Show Cause. They may be disturbed at the length of time of the rehearing decision, but they are unlikely to take the case. A evenly divided DCA could prompt a review, but I am still betting that the Habeas action will be quickly and summarily disposed of, and the DCA will just as quickly adopt Leslie's dissent. End of appellate process.

Rumpole said...

Not true 927. I disagree with his comment, But he has free editorial rights. I don't stop his access because he doesn't tow the line. This blog encourages free expression. I need a dozen more bloggers like him.

Anonymous said...

What surprised me is that Rothenberg found for the State.

Anonymous said...

When is the next 20/20 segment on the Connolly case? Can't get enough.

Anonymous said...

Toe the line