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Wednesday, April 29, 2015

SCOTUS AFFIRMS FLORIDA BAN ON DIRECT SOLICITATIONS FROM JUDICIAL CANDIDATES

UPDATE: Very nice work Professor, thank you. 
@Davidovalle305 tweeted this. We don't know his source and it is not up on the Florida Supreme Court Website yet:

BREAKING: Fla Supreme Court says Judge Jackie Schwartz should be suspended 30 days, fined $10K for telling store clerk "Go Fuck Yoursef."

Here is the order. The court did not suspend Schwartz. But essentially offered the 30 day suspension and 10K fine in addition to a reprimand and a letter of apology as a resolution the court would accept.




In an opinion written by Chief Justice Roberts, a sharply divided court, by plurality, affirmed a Florida Supreme Court ruling upholding Canon 7C(1) banning personal solicitation of campaign funds by judicial candidates.  Lanell Williams-Yulee solicited, by mail and online, financial contributions for her campaign for County Court in Hillsborough County.  She was unsuccessful in obtaining judicial office.

The Florida Bar filed a complaint against her for violation of the Code of Judicial Conduct, which is applicable to judicial candidates under Rule 4-8.2(b) of the Rules Governing the Florida Bar.  She admitted she sent the solicitations, but argued she had a First Amendment Right to do so.  The sanction recommended by the referee, upon conviction, was a public reprimand and costs.  When the Florida Supreme Court adopted the referee's recommendations, she sought cert and it was granted.

The entire premise of the Court's opinion is that "Judges are not politicians, even when they come to the bench by way of the ballot."  And even though they are elected, the State can make a decision not to treat judicial candidates like campaigners for political office.  In essence, judges do not have a constituency.  Their constituency is the law, not the people.

Justice Roberts makes it clear that the restriction on fund raising, although "free speech", meet the strict scrutiny test required for it to be upheld.  The ban on solicitation aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: personal requests for money by judges and judicial candidates, and serves a compelling public interest.

The CJ took the time to comment on judicial elections.  He stated that the desirability of judicial elections is a questions that has sparked disagreement for over 200 years.  Our founding fathers (with the exception of Thomas Jefferson) thought an appointed judiciary was the best method to obtain an impartial judiciary.  However CJ stated that it is not SCOTUS' place to resolve that "enduring debate."

However, there is good news for Richard Parillo and United Automobile Insurance Company.  The Court had no problem with "campaign committees" and one must surmise that includes PACs like the one Parillo created to give Rodney Smith $250,000.  So all you "robed warriors" and "would-be robed warriors" pay attention at the judicial campaign seminars the Florida Supreme Court Judicial Ethics Advisory Committee puts on each election cycle.

Monday, April 27, 2015

MY CITY IN RUINS




Baltimore joins the long list of American cities caught in the throes of upheaval and rioting and civil disturbance sparked by police misconduct. Our city- Miami- burned more than once in the 1980's. At some point people just won't take it anymore. 

Speaking of burning, as per @davidovalle305 's tweet, there was a small fire in the REGJB Monday morning. 
Plus someone defecated in the hallway on the second floor. 

Miami- see it like a native. 

Those were the days. 

We don't practice civil law. 
We are admittedly  not experts in pleadings, motions for summary judgement and other civil stuff. But we're pretty sure this pleading is not a winning one. We've admittedly wanted to end a pleading with the words "You control nothing. You are nothing. And you can do nothingF*ck you. Die", as this pleading ends. And there is a certain stylistic rhythmic theme to the coda of this document. But we've never done it. 

Yet. 



Friday, April 24, 2015

NEW COURTHOUSE OPENS

Sitting in the shadows of Miami's dilapidated civil courthouse, the new Gelber-Gladstone Children's courthouse  opened on Friday, with a bevy of local politicians and former Governor Bob Graham in attendance. 


Gelber-Gladstone courthouse
The Herald article is here. 

The new courthouse replaces perhaps the worst courthouse facility in the United States: the juvenile facility off of 27th avenue. 

But one wonders what chief Judge Soto must have thought, when glancing at the civil courthouse just a few blocks away, standing in asbestos-ladden, mold-ridden splendor. With vultures appropriately circling the higher floors, the civil courthouse is demode, and  stands as a constant, mocking and derisive reminder to Soto's failure last year to obtain funding for a new courthouse. The civil courthouse is her Israeli-Palestine conflict- an inscrutable  problem seemingly incapable of a solution. 

We wish those who will use the new children's courthouse well. We can't  count the number of juvenile cases we have handled, because the next one will be our first one.

We just have one question: will the new courthouse spawn a blog? 

Enjoy your weekend. 


Thursday, April 23, 2015

CLIENT NEEDS COUNSEL

Running the most widely read, most popular, and if we may so humbly say, most well written legal blog in South Florida, we are often approached (via e-mail) with requests from attorneys to advertise or otherwise associate themselves with this blog. We refuse all requests. 

But this client approached us for representation after a traffic stop, and county court not being our preferred milieu, we are soliciting counsel for this client. 

He is a good client, appears well mannered, mostly uses the potty, and cannot attend meetings or court between 2pm and 4pm (nap time). Shoot us an email if you can assist this young fellow.



Pursuant the recent Supreme Court case we discussed in our blog in the last post, we are reliably informed that the stop lasted only as long as was necessary to check license, registration,  sing the ABC song, and then the officer was on his way. 


Tuesday, April 21, 2015

THE RETURN OF THE 4TH AMENDMENT

In Rodriguez v. United States,  the redoubtable Ruth Bader Ginsberg, writing for an unusual  6-3 majority, held that a delay of seven to eight minutes after a traffic stop was concluded for the purposes of holding the driver until a dog could arrive to do a K-9 sniff for drugs, was an unreasonable seizure within the meaning of the fourth amendment.  Thomas, Alito (no surprise) and Kennedy! (surprise) dissented. Scalia joined his fellow opera lover RBG in the majority. 

We granted certiorari to resolve a division among lower courts on the question whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. 
...
We hold that a police stop exceeding the time needed to handle thematter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation. 
Because addressing the infraction is the purpose of the stop, it may “last no longer than is necessary to effectuate th[at] purpose.” Ibid. See also Caballes, 543 U. S., at 407. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. See Sharpe, 470 U. S., at 686 (in determining the reasonable durationof a stop, “it [is] appropriate to examine whether the policediligently pursued [the] investigation”).
Beyond determining whether to issue a traffic ticket, anofficer’s mission includes “ordinary inquiries incident to[the traffic] stop.” Caballes, 543 U. S., at 408. Typicallysuch inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance 

A dog sniff, by contrast, is a measure aimed at “detect[ing] evidence of ordinary criminal wrongdoing.” Indianapolis v. Edmond, 531 U. S. 32, 40–41 (2000). 
If an officer can complete traffic-basedinquiries expeditiously, then that is the amount of “time reasonably required to complete [the stop’s] mission.” Caballes, 543 U. S., at 407. As we said in Caballes and reiterate today, a traffic stop “prolonged beyond” thatpoint is “unlawful.” Ibid. The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, as JUSTICE ALITO supposes, post, at 2–4, but whether conducting the sniff “prolongs”—i.e., adds time to—“the stop,” supra, at 6. 

Query:  does this sentence read right: 
JUSTICE KENNEDY, dissenting. 
My join in JUSTICE THOMAS’ dissenting opinion does not extend to Part III. 

Thomas wrote this in dissent: 
Because the stop was reasonably executed, no Fourth Amendment violation occurred. The Court’s holding to the contrary cannot be reconciled with our decision in Caballes or a number of common police practices.

Query: Should the Supreme Court decide fourth amendment cases based on "a number of common police practices" ?
Should what the police do be a yardstick in determining reasonableness under the fourth amendment? 

Thomas seems to think so, and yet, in part II of the opinion he writes this: 
We have spurned theories that would make the Fourth Amendment “change with local law enforcement practices.”  

Thomas cites Terry v. Ohio with approval: 
This Court created an exception to that rule [requiring probable cause] in Terry v. Ohio, 392 U. S. 1 (1968), permitting “police officers who suspect criminal activity to make limitedintrusions on an individual’s personal security based onless than probable cause,” 

Query: Since a Terry Stop is a judicially created exception, reading into the constitution words for an exception that the founders never wrote nor contemplated, what in the world is Thomas, of all the justices, doing citing Terry with approval? 
Just wondering. 

Anyway, the fourth amendment struggles on, doing just a bit better today because of the Notorious RBG. 
See you in court. 


Monday, April 20, 2015

PAROLE

Is it time to reconsider parole? 

Florida, like most states, used to have a system of parole, where sentenced inmates could earn an early release with good behavior in prison. The people released early were monitored as if they were on probation. Then a series of highly publicized events in which parolees committed new violent crimes caused an uproar and legislators, never one to miss a popular cause and align themselves with the "tough on crime" crowd, did away with parole in Florida. 

It's never good to make a wide ranging change in policy based on a media-fed frenzy. 

Parole existed in Florida from 1941 until 1983, when the first version of Florida's sentencing guidelines were adopted. At the time, parole was essentially replaced with a system that institutionalized a thirty three percent reduction in a sentence, based on good behavior in prison. 

Then a series of highly publicized crimes committed by prisoners who were released "early" caused an uproar and legislators, never one to miss a popular cause and align themselves with the "tough on crime" crowd, did away with most of the sentencing guidelines and early release. 

Sense a pattern? 

But here is the question: with crime rates falling, and with decades of research proving that there are less expensive and equally effective alternatives to prison available, is it time to re-consider parole? 

There are moral reasons.  If we are truly a society based on Judeo-Christian ethics, then don't we believe in redemption?  Are people just that bad that a conviction for  sale of of a few ounces of cocaine with a prior for burglary of a vehicle at age eighteen requires twenty years in prison? There are sound scientific surveys that show that people age out of their criminal conduct in their mid-forties. But a pain-killer addict found with enough oxycontin faces a twenty-five year minimum mandatory. And make no mistake, there are simple drug addicts serving that quarter-century sentence in our state. 

In the early 1980's Florida was suffering from the simultaneous plagues  of crack cocaine and the immigration wave from Mariel, Cuba. Many of the people who arrived from Mariel (not all) were released from Catsro's prisons.  Cuba's incarceration problem became Miami's. It was a brilliant and bold stroke by Castro, but the unintended consequences were that many Floridians were caught up in the draconian response to the crack fueled  crime wave that followed. 

Today, the tragedies that make headlines are the crazy people who empty automatic weapons into classrooms at schools- but lets not get crazy and restrict a lunatic's right to purchase a semi-automatic rifle with a high capacity magazine and armor piercing bullets. 

Maybe, just maybe, we can apply the go-slow approach of gun control to incarceration. 

A good place to start would be the hundreds if not thousands of Florida's inmates serving decades for non-violent drug offenses. Drugs are the scourge of society. But for every dealer imprisoned, a new one, lured by the easy money, takes his or her place. Prison is not the answer for most drug crimes. 

Then we can look at the felony murder rule and consider parole for the hundreds if not thousands of people serving minimum mandator sentences for driving the get-away-car or, walking into the store with their friend who, unbeknownst to them, had a firearm. 

We should consider parole. It's cheaper then prison. It's effective. And it's the moral thing to do. 

"Let he who has not sinned, cast the first stone."  Somebody important once said that, right? 

See you in court. 

Friday, April 17, 2015

DID THE HERNANDEZ DEFENSE BLOW IT?

Roy Black has a new take on the "how can you represent those people" question that is the bane of the criminal defense attorney  in social situations. Check his blog here.

The final take on the Aaron Hernandez tragedy is that we find it hard to believe that a person who seemingly has it all- fame, money, a sports hero, would throw it all away and act like a common street thug.  And as the comments from the last post show, we also engage in shadenfreude , which as long time and careful readers of this blog know, means taking pleasure from the misfortune of others. 

The jurors gave interviews here  in which they said they were shocked that the defense admitted in closing argument that Hernandez was present at the murder scene. It's easy to be a Monday morning quarterback and criticize the defense for a gamble that didn't pay off. But if the prosecution was able through painstaking evidence to place Hernandez at the scene, then that might have been the only card the defense could play.  

Been there. Done that. And it's not pleasant. We don't like it when trials end up with facts that we didn't think the prosecution could prove. It's not a good sign. The best of us can adapt, but it tilts the odds even more in the favor of the prosecution. 

Who's getting the Apple watch? 
Not us. Our seiko works just fine. 

But we will be first in line for Star Wars. 
Enjoy the trailer and your weekend. 



Wednesday, April 15, 2015

HERNANDEZ GUILTY ON ALL COUNTS

The jury has spoken.  Guilty on all counts.  Life without parole.  The fall of this one-time all-pro athlete is complete.  But is this a surprise considering what was known about him as far back as his days at the University of Florida.

What kind of idiot making millions of dollars year commits one murder over nothing but an insult, and then covers it up by murdering his fiance's brother in law because he said something you don't like?  Once a gangster, always a gangster.

They are hardly done with him.  He has another murder in Massachusetts for which he must answer.  It may be time to open up an investigation as to what this evil guy may have done in Gainesville.

Tuesday, April 14, 2015

PERCY SLEDGE

Nobody seems to care about wrongful death penalty convictions, so at the risk of sounding like a Magistrate Judge Jonathan Goodman opinion, we will write about Percy Sledge and his death today at age 74.

Sledge, a Rock and Roll Hall Of Fame inductee, is primarily known for his 1966 #1  hit "When a Man Loves a Woman". 

Our favourite lyrics: 
When a man loves a woman
down deep in his soul
she can bring him such misery
if she is playing him for a fool
he's a last one to know
loving eyes can never see. 

The 60's & 70's: when music was music. 
Maybe someday we'll quote those lyrics in a DV case and make Magistrate Goodman proud. 

Not this Pitbull crap that Senator Rubio says he likes. 

See You In Court.


IMAGINE

Imagine getting stopped for speeding. Imagine a rude cop (we know, it's hard, but try). Imagine telling the officer you weren't speeding and then imagine finding yourself on the ground, in cuffs, arrested for resisting arrest with violence. 

Imagine getting your case set before one of these new "get tough on crime judges" who are trying to develop a reputation by sentencing people to maximum prison sentences who go to trial and lose. 
Imagine getting a win-at-all-cost-prosecutor assigned to your case. Imagine going to trial and the jury believing the police officer and imagine the judge sentencing you to four years in prison and telling you s/he was giving you a break and not sentencing you to the maximum because you have no priors and young children. 

Imagine being innocent and being in prison. 

Now imagine being convicted and sentenced to death and being innocent. 

This NY Times Op Ed has all the latest stats on innocent people being sentenced to death. 

152 since 1973. 

Imagine being innocent on death row and after a decade of work by under-paid-over-worked public attorneys, they get you off death row and your sentence commuted to life. They are thrilled having saved your life. You are still condemned to a living hell. 

Here's what you don't have to imagine: the current view of prosectors.

Responding to the searing honesty of Mr. Stroud’s letter, the parish’s current first assistant district attorney, Dale Cox, offered up some candor of his own: “I’m a believer that the death penalty serves society’s interest in revenge,” Mr. Cox told The Shreveport Times. “I think we need to kill more people.”

Mr. Cox, a prosecutor charged to do justice, made this comment in response to A.M. Stroud, a former prosecutor in Cox's office who made an apology to a man he wrongfully convicted and put on death row and who remained in prison for 30 wrong years. Mr. Stroud said he worked in a system that had  a "win-at-all-costs" atmosphere. 
Mr. Cox, responded to that criticism by upping the ante, as it were. He moved all in. "Kill em all, let the lord sort em out." 

Nice. 

There are at least a 152 people who don't need to imagine this scenario in the country with the world's greatest justice system.* It happened to them. 

See You In Court. 




* We don't believe that for a moment. This is sarcasm. Our system is broken almost beyond being fixable. 

Monday, April 13, 2015

OFFICER GREGG WENZEL POST OFFICE

Please see the invitation below.




Who was Gregg Wenzel? 

A hero. A former Dade Public Defender who volunteered to become a member of the CIA Clandestine service who was killed in the line of duty. 
His exploits have been written about on the blog before. 

As you go about your day, drink your coffee, curse the fact that you can't get good cell phone service, wait for a judge or a client, and generally grumble, remember that there are heroes who died so you can live your comfortable life. Gregg Wenzel was one of those heroes. 

See You In Court. 


Saturday, April 11, 2015

SEITLES GONNA SAVE YOU

A big well done, well done indeed, to Marc Seitles and Ashley Litwin (who argued the case) and Marcia Silvers who obtained a reversal of 454 concurrent life sentences for a 24 year old young man who on a first offense was convicted of possessing 454 pornographic pictures.

The opinion is below.
While we have no quibble with the reasoning, it almost seems like the court was result oriented and wasn't going to let the 454 life sentences stand when the defendant could have been charged with one second degree felony count of possession with intent to distribute.

True there was a Miranda violation, but the defendant then subsequently waived Miranda and gave an admission. In some parts of the appellate world, such a set of facts would be relegated to the ash heap of "harmless error". 

Don't get us wrong. We are thrilled at the result, as should be counsel and their client. But something tells us if this client was treated fairly to begin with, and had a small sentence and some probation, that the result might have been different. 


Thursday, April 09, 2015

THE CIVIL WAR ISN'T OVER .....


THE CAPTAIN REPORTS:

APPOMATTOX .......................

When you wake up this morning, look at your watch, and when you eventually see the hands of the clock strike one pm, think back 150 years and ask yourself this question:  Which side would you have been on?  At One PM, on April 9, 1865, Confederate General Robert E. Lee, walked into the home of Wilmer McLean, in Appomattox, Virginia, and surrendered to Union General Ulysses S. Grant, effectively ending the Civil War.

To think that our grand experiment of a democracy might have failed, well, those are some heavy thoughts.  We talk about American Exceptionalism today, but 150 years ago, our country was coming apart at the seams, and but for the strength and vision and leadership of a great President, Abraham Lincoln, that experiment may have failed.

The "Civil War" ended, the experiment didn't fail - but are we still fighting that war?

President Lincoln signed the Emancipation Proclamation on January 1, 1863 and by its words, it proclaimed the freedom of slaves in the ten states that were still in rebellion.  The Union won the war, the slaves were freed, but would it be fair to say that, 150 years later, some people still haven't gotten the news?

There is a connection between yesterday's post and today's - and it has to do with how some in our society view the black man in the year 2015.  Yesterday it was the video of Walter Scott being shot in the back by Officer Michael Slager.  Today we were introduced to the video of a mentally ill Lavall Hall, walking aimlessly down the street in his underwear, with a broomstick in his hand, as he is shot multiple times by a Miami Gardens Police Officer.  Lavall's mother had called the police for help.  They knew the history of Lavall Hall.  On the video, the mother can be heard begging the officers, "please don't hurt my child".

Here is the video released by the Hall's family lawyer:



Over the span of the last few months we have read about, and sometimes seen, video of black men, unarmed black men, being shot and many times killed, by white police officers.
 
Back in 2007, ColorLines and the Chicago Reporter investigated fatal police shootings in 10 major cities, and found that there were a disproportionately high number of African Americans among police shooting victims in every city, particularly in New York, San Diego, and Las Vegas.
 
ProPublica reported that "Young black males in recent years were at a far greater risk of being shot dead by police than their white counterparts – 21 times greater i, according to an analysis of federally collected data on fatal police shootings.  The 1,217 deadly police shootings from 2010 to 2012 captured in the federal data show that blacks, age 15 to 19, were killed at a rate of 31.17 per million, while just 1.47 per million white males in that age range died at the hands of police."

The Atlantic's headline in today's lead story is telling: "The Civil War Isn't Over".  In the article, they recognize the end of the Civil War as happening 150 years ago today, but they go on to state that: "The questions at the heart of the war, though, still occupy the nation, which has never truly gotten over that conflict. The great issues of the war were not resolved on that April morning at Appomattox. In this sense, not only is the Civil War not over; it can still be lost."

Our Declaration of Independence may have been founded on the proposition that all men are created equal, but as Lincoln reminded us four score and seven years later, "the nation founded in a revolution against monarchy had to fight a second revolution against itself in order to determine whether the “proposition” of “equality” had a future in any republic."

The Atlantic piece closes on this note:  "Wars end loudly and in ruins, and sometimes on silent, beautiful spring landscapes such as the surrender field at Appomattox; but history keeps happening. Making “men equal on earth in the sight of other men,  ....., is a long-term proposition, and for that matter, a definition of the meaning of America."

On April 9, 1865, the Civil War ended.  Five days later, Lincoln was shot dead at Ford's Theatre.  Will Lincoln's dream of equality for all men ever come true?

Which side are you on ....................

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


Wednesday, April 08, 2015

POLICE OFFICER CHARGED WITH MURDER .....


THE CAPTAIN REPORTS:

HAVE YOU EVER WITNESSED A MURDER .....?

Police officers have, arguably, one of the most difficult jobs in our country.  At the ripe young age of 18, they can apply for admission into one of many police academies.  If they get through the physical and mental examinations and manage to learn something about the law, they can graduate with a diploma and earn the right to possibly get hired by a police department.

After they are employed, and given a period of probation, where a Field Training Officer (FTO) usually spends six months with them, they are then placed on the street to "protect and serve".  They are issued a service revolver, a Taser, a badge, and presumably, enough understanding of the law, that they can enforce it - fairly and safely - to the public and to themselves.

In every profession, there are bad apples.  There are bad lawyers, bad politicians, and there are, bad cops.  The difference with the police officer is, that they are sometimes forced into making a split second decision, one that could mean the difference between life and death; and then that decision will be analyzed and scrutinized, second by second, and if there is video, that second can even be broken down into milliseconds, about their decision-making in a certain event.

Officer Michael Slager is a police officer employed by the North Charleston Police Department.  He is 33 years old and he is white.  And today, he was charged with the murder of 50 year old Walter Scott, a black man, who was driving his Mercedes Benz, with a broken tail light.

This is a BLOG run by a criminal defense lawyer and many of our readers are criminal defense lawyers.  So, being a fellow criminal defense lawyer, we will presume Officer Slager innocent and wait until all of the facts are presented in a court of law.  But, unfortunately for Officer Slager, and fortunately for Mr. Scott's family, and the rest of the citizens of North Charleston, an innocent bystander caught some of the encounter between Slager and Scott, on video. 

Here are some of the facts:  Scott had previously been arrested about ten times; mostly for failing to pay child support.  His most serious arrests include an assault and battery in 1987 and a 1991 conviction for possession of a bludgeon.  Scott's brother surmised that, Scott likely had an outstanding warrant for back child support and didn't want to be taken into custody.  Thus, he ran from the traffic stop.

Slager was previously in the US Coast Guard for five years before joining the police force.  He fired his weapon eight times, striking Scott five times; three times in the back, once in the buttocks, and once in the ear.  One of the shots entered Scott's heart.

You can read the entire New York Times story here.

The video of the alleged murder is disturbing and today, the lawyer for Scott's family released it to the New York Times.  Here it is below.  Did the officer shoot because he was in fear for his life?  (The Supreme Court has held that an officer may use deadly force against a fleeing suspect only when there is probable cause that he “poses a significant threat of death or serious physical injury to the officer or others.”). Was the color of Scott's skin a factor in how and why all of this got started?  Scott was driving a Mercedes Benz.  This was all over a tail light being broken.  How does that kind of traffic stop escalate into an officer shooting at someone, running away from the officer, eight times, striking him five times, and killing him?


So, now it's your turn to weigh in on this.  Have at it.

JUDICIAL ELECTIONS 2016 - UPDATE .......

Today, newly appointed Circuit Court Judge Jason Bloch woke up to reality.  After Judge Darrin Gayles ascended to the Federal bench last year, Governor Scott appointed Bloch to replace Gayles in November of 2014.  Enter Marcia Del Rey.  Ms. Del Rey has been a member of The Florida Bar for nine years.  She has a family law practice.  If you Google her, you may recall seeing her rather large billboard promoting her law office.  If you Google her, you also may not hire her.  From reading many of the comments posted from Avvo, or Yahoo, or City Search, etc., it appears Ms. Del Rey has made a few enemies of her former clients.

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

Tuesday, April 07, 2015

APPLE REPAIR- THE FIRST CIRCLE OF HELL

In Dante's Inferno, there are nine circles of Hell.  The First circle is Limbo, the eighth is Fraud. We're going to go easy on Apple and say their repair process is the First Circle- Limbo.

We are out of town trying a case when our trusty Mac Laptop dies with a battery issue. This has happened before. We have Apple Care (motto: "a sucker is born every minute"). In these desperate situations when time is money, here is what Apple Care gets you: A smile when you buy it, a grimace when you try to use it. 

Here is the scam: Apple will repair your product, when they are damn good and ready and that means within a few weeks. They will sell you a computer, phone, and iPad today,  but they will repair it next month. 

"Wait" you say- just make an appointment on the website. 

For a computer company that lives on the web and makes web friendly devices of all sorts, their website appointment process is as easy and simple and user friendly as, say, well…it's hard to imagine anything less user friendly and easy. Maybe if you imagine the worst possible IRS agent who only speaks Chinese and lives in China and the only way you can communicate with them is if you log on to their Chinese website. 

Actually, that analogy isn't really fair….to China. 

You can't get on the website and if you do you receive the message that "the store currently has no reservations available."

OK. So you explain to the judge your problem and she graciously gives you the day off and you walk into the Apple  store ("abandon hope all ye who enter here for repairs")  and are greeted at the front of the store by that friendly young person wearing that nice, soothing blue shirt who directs you to that next friendly young person who's  wearing that nice and soothing blue shirt who grimaces when you tell them you don't have an appointment. Then they type on their iPad (their's works) and finally they smile: "OK. I can fit you in at 9:20 tonight!). 
"But it's only 10:05  am now."
"Yes. Lucky for you we have a spot."
"Umm…is there any other store with an earlier opening?"
"I'm sorry sir. I work for the biggest, wealthiest, most technologically advanced company in the universe, and I cannot access the schedules of other stores…But wait sir. Today is April 6. I can get you an appointment at 11:00 am on the 16th."
"Uhh….I'm a lawyer in trial, the judge gave me today off to get it fixed. I know what the problem is. It's happened before. It's the battery."
"Oh, wait sir. Sorry. Someone just took that last appointment on the 16th. I have 4:45 PM on the 22nd open if you would like that."

Remember that Jerry Seinfeld show where the car rental agency doesn't have any cars? 
Jerry says: "You know how to take the reservation. You just don't know how to keep the reservation. And that's really what the reservation is all about."

Hey Apple: You know how to sell a repair policy, you just don't know how to give someone a time to get their item repaired, and that's really why we buy the repair policy in the first place. 

So, we walk out of the store and head over to Best Buy to buy a replacement laptop for $500 bucks and along the way we decide to call Apple:  "Siri phone home."
And sure enough Siri  calls Apple in San Jose, California.  We hit a few buttons and get a live person who profusely apologizes and says "I'm going to transfer you to a Apple Care specialist. Now when the voice menu comes on, no matter what the prompt asks for just say "advisor" and you will get a live person."

We wait and then the voice menu comes on…."Welcome to Apple Care please enter your 22 digit IEEM number now."
"Advisor"
"I'm sorry. I didn't quite get that. Did you enter your 36 digit IEEM number? Say yes or no."
"No"
"Welcome to Apple Care. Please enter your 125 digit IEEM number in reverse polish notation."
"Advisor."
"I'm sorry. I didn't quite get that. Did you enter your 125 digit IEEM number? Please say yes or no."
"Advisor."
"I'm sorry. I didn't quite get that. Did you enter the necessary launch codes for the trident ballistic missile?"

Welcome to Dante's First Ring Of Hell also known as Apple Care. You can't get an appointment this month. You need to camp out in the store and bring an tent and shower if you want to try and get service today. You can't call without knowing the secret code. In short, once you have it- Apple Care-  you can wipe your butt with it, because that's all it's good for. 

Toshiba Laptops aren't all that bad.  And Best Buy has this repair policy called "The Geek Squad…." 

Sunday, April 05, 2015

WHAT IF…?

The NY Times has an article today on the possible existence of Jesus's burial tomb, with bones, leading to the troubling (for some) conclusion that there was no resurrection. 

That got us to thinking about what if science could prove or disprove the existence of the almighty? 

Let's leave out our Christian brethren and wish them a Happy Easter and ponder this cosmological question: When and how did the universe begin? (Yes, its a big question that has preoccupied most of Stephen Hawking's life, but now Rumpole is involved, so we will make short shrift of the issue). 

The Bible says right after the initial creation that the earth was "unformed and void"  and that "darkness was on the face of the deep" and that the spirit of the lord "hovered over the face of the waters." If you hear the words spoken in the original text, there is a stark, poetic beauty to the description of nothingness. 

 Interesting to note that the Genesis story of creation says "how", but not "why?" Is the answer to the second contained in the answer to the first? If the universe was created randomly and emerged from the big-bang, and we can learn the physics of the how, then the answer to why is "no reason really, it just happened." Not a pleasant thought.  

The Penrose-Hawking singularity theorems postulate that at the beginning, the universe was a singularity, followed by an intense period of heat for the smallest amount of time imaginable- indeed as time was just beginning to be time- and then  a big bang followed by an observable cooling of the universe. Since we know the universe cooled, we know (probably) there was a superheating and a big-bang. 
  
Now we know that you are all saying: "Just wait a doggone moment Rumpole!  Quantum mechanics (the study of very small things) does not permit particles to inhabit a space smaller than their wavelengths and thus the big-bang cannot be correct." 

Of course that  is the rub- the search for the unifying theory of general and special relativity (the operation of space, time and spacetime- really big things, and quantum mechanics, the operation of really small stuff.  Right now, both theories cannot co-exist, and if we didn't have a killer schedule of briefs and trials through the end of the summer, we might turn out attention to this conundrum and help resolve it. But alas the 11th circuit is stingy with extensions, so we have a lot of writing ahead of us. 

But what if the question can be answered? What if there is something before singularity? What if in the explanation of the big-bang and in the unifying theory of physics and cosmology the hand of the Almighty is seen and accounted for to describe the indescribable. In short, what if science could prove the existence of g-d? 

Quite frankly, we'd rather that didn't happen. It's difficult enough to live in a world in which religious fanatics foreign and domestic try and exert their will on what they think the Lord wants. From pizza parlors in Indiana that do not what to serve homosexuals, to Muslim fundamentalist that behead christians, we've had quite enough of religion's influence on our life. 

So we will not continue in our cosmological endeavors. We do not want to know. If the universe is merely a random occurrence, then life is meaningless and death is a very depressing thought. 

If on the other hand there is a spirit that was once upon the darkness and the void, then what did Kentucky do to deserve the wrath of the Almighty  by losing to Wisconsin Saturday night? Did the Lord's bracket need Wisconsin and Duke in the finals? 

 In short, a world without faith- in which our creator is knowable, sounds very unappealing. G-d forbid he turns out to be a rabid Wisconsin fan. And the consequences for the NFL are too difficult to contemplate. We'd much prefer to believe Belichick has sold his soul to the devil than know that on Sundays the number one fan wears a Patriots Jersey.  

What about polyester and plaid? QVC and quinoa? Hialeah branch court and the Fast and the Furious movie series? Can we really reconcile Fast & Furious 7 and an all-knowing,  all powerful creator?

 The words "oy-vey" come to mind. 

Happy Easter. Happy Passover. 
See You In Court. 

Thursday, April 02, 2015

POP QUIZ

Hope you studied. 

What do you call a place where a judge emails a public defender advice on how to get a lower sentence in his division and the SAO responds by filing a motion to disqualify the judge in every single case in his division? 

Think hard….

BROWEIRD!!! (  © Rumpole & Justice Building Blog. All Rights Reserved.). 

The Sun Sentinel article is here

The Judge is John Contini. 

The County is Broward. Where anything can happen, and usually does. 

See you in court, where in Dade judges rarely grant downward departure motions, much less email instructions about how to get one. 


A BROKEN SYSTEM


A Louisiana Prosecutor who put an innocent man on death row says the system is broken. 
The Huffington Post has the full story here. 
The Prosecutor, Marty Stroud had some interesting things to say: 

Now, Stroud is sharing his story, both as a cautionary tale and as a call to action for ending the death penalty. Stroud appeared on MSNBC Wednesday night with a warning to prosecutors:
"They should take heed in the fact that if something does go wrong, as it did in this case, it will be with them until the day they leave this earth."
Prosecutors should want justice, not convictions," Stroud said. "We still deal in the politics of blood."
"I don’t know where for the life of me we get off preaching to other countries about their criminal justice systems," Stroud said. "We need to look inward. We’re with the likes of the Yemen and North Korea and Iran."
"We can’t trust the government to fix potholes," he continued. "Why should we believe they can design a death penalty system that's fair?"

This area of the law is not our bailiwick or milieu, but we have noticed this: Florida's death penalty system is an outlier. Florida is only one of two states that allows a person to be sentenced to death without the unanimous recommendation of a jury. In following the Federal Ring line of decisions, it seems apparent that the system does not follow what the Supreme Court has said is the constitutional requirements for enhanced sentencing. Now the US Supreme Court has accepted Cert on a case challenging Florida's death penalty law. The law was held unconstitutional by a federal judge in our district (Judge Martinez we believe).  The case will be argued next term. 
And yet, all through the state we see death penalty cases starting up. As far as we know, the Miami Dade State attorney's office has given the challenge to Florida's laws a big yawn. 
The government can't fix potholes, and Florida prosecutors can't or won't read a petition for cert to see that the chances of the US Supreme Court upholding Florida's death penalty statute are slim to none. Why would the court grant cert in this case about a set of laws completely out of step with current law and the laws of other states? 

See You In Court. 

Wednesday, April 01, 2015

NEW COURT SCHEDULE

In an order dated today and to be released later today, a consortium of Dade Judges are announcing a pilot project to stagger court starting times to alleviate courthouse crowding, parking issues, witness issues, juror issues, and even attorney issues. 

To summarize, ten circuit criminal courts and two country criminal courts will start at 1:30 PM. 
The order reasons that "after careful study there is a need to start some courts in the early afternoon. This will allow prosecutors to meet with witnesses in the morning at more convenient times, rather than trying to squeeze in seeing them in the early evening after court has concluded… many jurors surveyed indicated that their mornings are busy with child and work issues and if they had to time to spend the morning on personal issues that they could devote the rest of the day to trials. Additionally, an aging courthouse and parking issues and the problems they cause would be immediately alleviated with a significant number of individuals not entering the courthouse during the morning rush. "

How will this new schedule be implemented? By choice. Attorneys or clients will simply request "afternoon court" on their pleadings and the cases will be set in the afternoon. Pro se clients in county court will call into a special number and will be guided through an automated system that will schedule their arraignment and all other hearings in the afternoon. 

The order concludes with this: "The market place will decide the effectiveness of this new system. If afternoon court works for a substantial number of litigants, then the numbers will tell the story."

Rumpole says:  this is a long time coming and the date of this order is perfect for its implementation. 

See you in court in the afternoon.