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

Friday, January 22, 2016

POPCORN AND COKE

UPDATE: Alex Michaels won an amazing victory today in a double homicide case when Judge De La O issued a judgment of acquittal. The main eyewitness broke under a withering cross examination by Michaels,  and at one point refused to answer any more questions and invoked the Fifth Amendment. 
Well done. 

First, believe it or not, we are a great believer in courtroom decorum. Respect should be shown, if not for the individual judge, then for the court itself (except for you-know-where. Seven letters; begins with a B end with a D and is not Brevard county.)

Blog contributor The Professor believes we are wrong, to wit:


The Professor said...
He is authorized to ban the usage under Rule 2.451 Florida Rules of Judicial Administration, which states:

"(1) The use of electronic devices in a courtroom is subject at all times to the authority of the presiding judge or quasi-judicial officer to:

(A) control the conduct of proceedings before the court;

(B) ensure decorum and prevent distractions; and

(C) ensure the fair administration of justice in the pending cause"

(Although the professor agrees with us on this:)  Smallwood v. State, 113 So3d 724 (Fla 2013), Fred had no right to look through the owners cell phone to obtain evidence to be used in a contempt of court proceeding. He is, in this instance, a state actor. The owner could file a motion to suppress, and based upon the facts presented in the post, that motion would be granted. It would come down to the bailiff vs. the owner of the phone.

Rumpole believes a member of the public could bring a tub of popcorn and a  72OZ big gulp and sit quietly in the back of the courtroom happily munching and drinking their way to a coronary while quietly playing candy crush on their phone. 

Who is right? 
Rumpole, duh. 
The Florida Rules Of Judicial Administration a/ka/ the rules no one reads, are not laws enacted by the state legislature. They are rules enacted by the Florida Supreme Court. 
On June 30, 1978, the Court promulgated new Florida Rules of Judicial Administration* designed to update and consolidate a number of related provisions that had previously appeared throughout the Court's civil, criminal, appellate, and transition rules. These rules were made effective on July 1, 1978, subject to Court revision on the basis of comments submitted by any interested persons not later than December 31, 1978.
In re Fla. Rules of Judicial Admin., 372 So. 2d 449, 449 (Fla. 1979)

Because they are rules enacted by one court to guide the actions of another court and the officers of the court, they have no, none, nada, jurisdiction over Pepe and Maria Q Public who wandered in to watch a scintillating disorderly conduct trial. 

Judges can make attorneys do lots of things, but they have limited jurisdiction over the general public. Therefore, we persist in  our contention that a person can wander in off the streets hot dog and coke in hand, and perambulate into a courtroom and watch the proceedings and inwardly cheer like they were at Marlins stadium (except there are more people in any given courtroom in Dade than at the average Marlins' game.)

Disruptive behavior does give the judge the right to order the person removed. Behavior that constitutes either a crime (disorderly conduct) or contempt of court (writing a blog disrespectful of judges) is punishable after a hearing. 
But a Judge cannot- repeat CANNOT confiscate personal property like cellular phones of an individual. Property could be seized during a lawful arrest and held as evidence and the property may be subject to forfeiture if the property was used to violate Florida's Contraband Act. 

But we still firmly believe this can occur:

Bailiff (walking up to person in back of courtroom): Can I help you?
Person (puts down tub of popcorn and soda and phone): Thank You! I would suggest they put a soda fountain in each courtroom. As it stands now, I have to go downstairs to the El Chapo Cafe to get a refill. 

We wouldn't recommend such behavior. But just like case law that says people can wear shirts that say "F the Police" Or "F the Court" to court, people can quietly sit in a courtroom and scroll through Tinder waiting for a hook-up and there isn't much a frustrated Judge facing a tough re-election challenge who doesn't like breast-feeding attorneys and scrolls though phones to perhaps ameliorate his prurient interest in the contents, can do about it. 

See You In Court. 

13 comments:

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.

Anonymous said...

Fred Sarapin was told at judge school not to do it. He's an idiot.

Anonymous said...

Professor , you wouldn't know shit about a trial

The Professor said...

2:13 - I can promise you, I have spent more time in court than you could possibly imagine. But nice try. I will not engage.

Scott Saul said...

While you ladies are bickering...Great job Alex!

Anonymous said...

Professor, you a-hole - you just did.

Anonymous said...

so funny about Seraphin...as a pd as playful as a little housecat--no fight at all.

put a robe on him and he starts acting like a beast

oh well happens to some people

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 to?

Second- lets say you are a busy professor and you are a witness in a horrible petit theft case and are subpoeaned 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.

Rumpole said...

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.

Anonymous said...

The professor is right this time. Court hearing are serious and should be respected. If you must communicate or play you must exit and not be a distraction or disruption. I suppose you also defend the publics constitutional right to speak during the proceedings and give their opinions out loud.

Anonymous said...

Lost in Alex Michaels many episodes of over doing fights with Judges and prosecutors is the fact the he is a hard fighting lawyer who gives his clients 150% everyday. His many troubles have all been crossing imaginary lines on behalf of his clients. The man seems to be trying a murder case every week. He is a great champion for defendants and the most zealous of advocates. He is not the timid soul who knows neither victory nor defeat. Oh,and by the way a great lawyer as well. We need more Alex Michaels. God bless him!

Dominican Dave said...

Judge Seraphin has been around long enough it's time for him to move along. He will be fine with a nice fat pension,

The Professor said...

Changing the subject Rump. There is a difference between denying access and what happens once inside. I am not disputing that Fred went to far this time, I am only speaking to the the general proposition.

I have spent a lot of time in the REGJB. It is and has been almost a zoo at times over all these years. Efforts to maintain some semblance of dignity has been difficult. That said, there is no reason for there to be abuse of the power. Despite what some think, a courtroom is not an exercise in democracy. Someone is in charge, and that would be the judge.