WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Monday, January 25, 2016

A DEBATE

Blogger The Professor said...
Rumple,

Would you agree that taking a cell phone for a period of time, legal authorized or not, is a better alternative than contempt for violation of a court order (written or otherwise) and then still taking the phone? Would you agree that if a person is found in contempt the a judge could, as a sanction, take the cell phone, despite your reference to the forfeiture law?

You ignore the inherent powers of the court like it does not, nor has it ever, existed. There is a reason why some judges are rebelling. There seems to be perception that the tail wags the dog. A wise man once said that despite the fact that judges have to run like politicians, they have no constituency. They serve the law and the respect to which the law is entitled. Despite the claim that defense lawyers are the Constitutions last guardians, it is judges that are the guardians of the gate. They have no soldiers to enforce their orders, only the respect that our democracy demands as a nation of laws.

You ferment a thought process that a courtroom belongs to the public and they can do whatever they want, act anyway they want, and the judge has no right to control conduct. I disagree, if I were on the bench and someone walked in with popcorn and 70oz of a soda like he was at CineBistro, I would throw his ass out (of course making sure that his 70oz and popcorn did not spill) so fast that his head would spin. You would diminish a judge's control over his courtroom from being in charge to impotence. Can you see it now, jurors sitting in the box with their hot dog or popcorn or goobers with a 70oz coke watching a trial like it is "Star Wars" in 3D? I am sorry, but on this we part company.
Friday, January 22, 2016 8:56:00 AM

Blogger Rumpole said...
First of all professor, lawyers are now on their cell phones constantly. Many of my colleagues give clients their cell number and clients text throughout the day, especially in the morning at the REGJB with questions like - where is the courtroom? The Judge is not here what do I do? 
Is The rule against texting just for clients, or lawyers as well?

Second- lets say you are a busy professor and you are a witness in a horrible petit theft case and are subpoenaed for trial Monday morning. You do your duty as a citizen and show up. Your phone rings. You don't answer. It's your broker. The market opened down 350 points and you were thinking of liquidating a portion of your portfolio to pay for your daughter's education at Brown. Then your wife texts you about the roof. Meanwhile court drags on for hours and hours. What are you supposed to do? Just sit there and stare at the wall? 
Texting on a cell phone is not disruptive to court proceedings. Period. A judge has no right to confiscate a phone, not making noise, just because the recipient is texting. David Ovalle tweets trials as they are unfolding. Is Seraphin going to take his phone?

Next- If there is an issue, the first response is to have the bailiff speak with the person privately, outside, instead of being some loud mouth lout and embarrassing the person in court and showing off your power. 

Third- I was making a point about popcorn and soda. No, I do not think it's appropriate for court. But there are no rules against it. Just like there are no rules against wearing a hat in court and yet I see bailiffs tell people to remove them. What about religious Muslim or Jew who has to keep their head covered?

Yes a Judge has the inherent power to control their court. And the better the judge, the less they use it. The old adage if you want respect, give respect (Tony Soprano I believe) applies. I never saw Judge Cowart hold anyone in contempt.Or even give anyone a hard time. 
The Late Henry Oppenborn was a county court judge, and a former paratrooper who fought in wars (Korea I think) for this country. At the start of every court he INVITED everyone to stand and say the pledge of allegiance. Everyone did most of the time. And when someone didn't, he did nothing, because he knew this great country that he risked his life to defend guaranteed that person the right to sit there and twiddle their thumbs. 

When judges act as childish, churlish, and petty as Fred Seraphin, then they need their chain yanked. They need to be told they have limited power over the people in front of them as defendants and almost no power (jurisdiction) of citizens who wander in to watch. It's their court as much as the Judge's. Those Judges secure in their power and who have wisdom don't make the pages of this blog doing something stupid like stealing cell phones. Those insecure petty tyrants do. Those are my targets and none of them have the courage to even respond to the blog and write a well reasoned defense as to why they have the right to steal a cell phone.
You may try a lot of cases. But are you in the REGJB or Federal court much? I am. And at least once a week someone approaches me and says "can I go in there?" and points to a courtroom. And my response is "this is the United States of America, courtrooms are open to everyone". Sometimes people respond "But I am not a citizen" and I respond "That's what makes this country great. Courts are open to everyone, not just citizens."

There was an old time bailiff who used to give people a little lecture on history and rights and freedom and then invite everyone into court saying "this is your place of freedom, come watch justice at work." People entered with a smile and I can tell you he never ever had a problem with anyone.

There's a right way to exercise inherent power and a wrong way. And Seraphin and most (not all) of those jerks in Broward don't have the first clue on how to do it. There was a county court judge (maybe he's gone now) who LOCKED THE DOORS of his courtroom at 9:01 in Broward and no one could get in. Talk about a complete misunderstanding of power.
Sunday, January 24, 2016 8:22:00 AM
 Delete

20 comments:

Claude Erskine - Browne said...

Professor
What rule allows Judges or Bailiffs to throw out kids from the Courtroom when the kids Are Not making any noise nor disturbance? I happens all the time.

The Professor said...

Rumple,

Let's address each of your points.

1. I do spend a lot of time in court, and have spent my fair share of time in Federal Court. Interestingly enough you have a double standard as to each court. In Federal Court attorneys are not allowed to use their cell phones in court. Non-lawyers are not allowed to bring in their cell phones into the courthouse at all. Why do you believe it should be different in State court? What do you think would happen in front of Fred Moreno, Joan Lennard or any of the other former state judges who now sit in Federal Court, if you pulled out your cell phone and started texting during a PTC session?

2. My answer to point 2 is: go out in the hall and take care of business. If you are in trial, go sidebar and ask the judge for a recess.

3. We already give accommodation to those who need it for headwear for religious purposes.

4. Again I think you mix messages when you address phones and access Access is guaranteed by the Constitution, and I cannot agree with you more on that point. Cell phones and the possible distraction and disruption are a different issue.

As it relates to Fred, it is true that he is not the only one who takes this stand. There are and have been several judges who have seized, temporarily or permanently, cell phones. Most of them warn before acton is taken. That warning satisfies as the order not to be violated. I still believe temporary seizure is better than contempt.

As far as Cowart or Oppenborn are concerned, I don't think anyone would have pushed their buttons on cell phones, if they said "no" and they would have. Back then people had a healthy fear of judges based upon respect for the position. That does not exist today. Judges, justifiably or not, do not command the respect of the Bar. They are besieged by disrespectful and confrontational lawyers. As stated before, tail wagging the dog. Efforts to maintain some semblance of dignity is a constant battle. That said, there is no reason for there to be abuse of the power. But, despite what some think, a courtroom is not an exercise in democracy. Someone is in charge, and that would be the judge.

the trialmaster said...

Rump. You are right on with Judge Ed Cowart. In my opinion, one of, if not the best judge I have ever had the pleasure to appear before. I have probably been before over one thousand judges over the years. He was the best.....and is missed. Unlike most of the Judges of today, he made a great living in private practice and had no "black robe fever".

The Professor said...

Claude, I know of no rule that permits that. I will not defend a judge who throws children out of the courtroom, unless they are disrupting the the proceedings or creating a disturbance.

Rumpole said...

I always remember that when I objected he would say "bless your soul". The man was brilliant and one of the three best Judges I have ever been in front of. I include Gonzalez of the SDFLA and Jack Weinstein as the best in the EDNY

Anonymous said...

Rump, if Judge Cowart was a true Southerner that "Bless your soul" might not have really been a compliment!

Many different issues raised in this "debate."
1) The use of cell phones, if prohibited inside the courtroom, should be posted with a warning to everyone. If a person violates the rule they are in violation of a Court's order and are subject to contempt. The problem is threefold: a)that it is not posted in Seraphin's courtroom; b)attorneys are used to "getting a pass" on rules that govern those in the peanut gallery; and c)the Judges in the REG cannot get together and create any type of uniformity. What's allowed in one courtroom is banned in another, but I have no way of knowing it until Cartman is standing over me yelling "respect my authoritah!" and trying to kick me out or take my stuff. Cell phones and cameras are not allowed in federal courtrooms, thus we only have artist renditions of what happened in Federal Court. The rules are uniform and everyone knows then, and no one violates them.

2) Children and family members, unless disruptive, should not be banned from the courtroom. Ask Judge Butchko.

3) Judges are due respect. I think a huge part of the problem is that many of them don't know how to get respect, nor give it.

Anonymous said...

Look, it's simple: Seraphin is a jerk. Just spend a few minutes in his courtroom and it is obvious.

Rumpole said...

First, as a transplanted southerner I was well aware of the full implications of the "bless your soul" response to my objections. He didn't always say it, and I learned quick.

Second walk through the REGJB and see all the "no children allowed" signs on courtroom doors. Totally disgraceful and unconstitutional.

Third, I'm old enough to remember the "no beepers" signs in the courthouse.
Cellphones are now a fact of life and an important tool in doing business. The reason why judge's can't get together is that the CJ has limited powers over the other judges and can't tell them what to do. It's like herding cats.
Check that.
It's like herding cats with the biggest egos, who thinks their litter boxes don't stink, who believe they and they alone are the savior of the judicial system and they are just one high-profile case from being plucked from obscurity and appointed by the president to the supreme court once he see's their brilliance. Thus, once they don the black robes it is nearly impossible to get them to listen. Much like a cat.

the trialmaster said...

I would rate Judge Ed Cowart as one of the best three I have been in front of. He ranks up there with Judge John Gleeson of the S.D. NY; and the late Judge also out of the S.D.NY Judge Gararadi. Among top judges in Miami would be Jerry Kogan and the late Paul Baker.

Anonymous said...

Paul Baker, touchdown maker.

CAPTAIN JUSTICE said...

THE CAPTAIN REPORTS:

Whilst the Professor and Rumple (as the Professor calls him) are debating the subject of cell phones in the courtroom, SCOTUS handed down a kinda important decision today in the case of:

Montgomery v. Louisiana

By a 6-3 vote, with Kennedy writing the Opinion, and Scalia writing the Dissent, (a scathing Dissent it was - shocking), in which Thomas and Alito joined (more shocking), the Court rules on Life Sentences in juvenile cases. This case took the 2012 Miller v. Alabama decision one step further and rules that Miller was a substantive change in the law and that the decision should be applied retroactively.

So, now all teenagers that were sentenced to life in prison before Miller, must have a chance, by way of a new sentencing hearing, or by a hearing before a Parole Board, to argue their case under Miller and attempt to convince someone that they deserve less than a life sentence.

http://www.supremecourt.gov/opinions/15pdf/14-280_4h25.pdf

http://www.scotusblog.com/case-files/cases/montgomery-v-louisiana/


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

Anonymous said...

Can a judge post an order prohibiting people from doing something in their courtrooms that is not disruptive? If so, what's the authority (I'm not aware of any)?

These judges need to grow up. And, the comparison to Federal court doesn't impress me. Just because a judge can be a jerk doesn't mean he or she should be a jerk.

As for the Montgomery case, the outcome was predictable.

BTDT

Anonymous said...

My vote is with J. Lenard, S. Millian, and Seraphin as the 3 best ever.

The Professor said...

Watch for the publication of new Rule of Criminal Procedure 3.802 dealing with the Miller issue.

Rufus T. Firefly said...

I liked McGinnis

Anonymous said...

Jordan best federal judge. Hands down.

Anonymous said...

zzzzzzzzzzzzzzzzzzzzzzzzzzz

Big WInton Fan said...

Let's not forget the Man, the Myth, the Legend, the great Arthur Winton, the subject of perhaps one of the greatest florida legal jurisprudence cases of all time:

State v. Winton 522 So.2d 463 (Fla 3d DCA 1988). Winton put someone in PTI over state's objection. They took a writ of prohibition- ended up on Morphinious's desk. Did did a brother a favor and denied it. State went to 3rd who reversed. At least the man fought the good fight. A legal giant.

Anonymous said...

WE NEED MORE WINTONS ON THE CC BENCH NOW. The man knew how to run a courtroom. Didn't take people's beepers. No nonsense. A legal scholar. Had a well reasoned opposition to forfeiture statutes and the exclusionary rule that was decades ahead of its time.

Anonymous said...

IT'S BLESS YOUR HEART