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

Thursday, January 28, 2016

IN PRAISE OF JA'S

BREAKING: The Sun Sentinel has the story of a Broward Criminal Defense attorney being caught in flagrente delicto with her client, in the jail, "bent over a table" committing an act that is illegal in the State of Florida unless you are married. 
The lawyer has been banned from all five Broward Jails, which is a shame because we have it on good authority that hundreds of male inmates have called requesting a consultation. Business is good.
Interestingly, the JAA Broward blog is silent on this matter.  

Fred Haddad is representing the lawyer. The lawyer is a former Broward PD and was fired in January from RC4 for "misconduct". 
There is a Bar rule prohibiting lawyers and clients from having sex. 
We were wondering about this. An inmate cannot be deemed to give consent to have sex with a corrections officer, for obvious reasons. If the defendant was a female and the defense attorney male, would there be people wondering if this was a consensual act or if the attorney was coercing the client to engage in sex in exchange for representation? Because if that occurred, that is a crime. Is anyone considering whether this instance could also be a crime? 

Also, we have a post coming up from The Professor. Judge Miranda is having even more trouble with the 3rd DCA and her contempt orders. 

All too often (and always if you dial the 954 area code) Judicial Assistants are impediments to getting access to  courts. 
The phones aren't answered, and when they are you are reduced to begging to get a case on calendar. 
Client dying and you need an emergency motion for bond? Sure, it will be set in two months and the judge requires a motion and memorandum of law, filed in triplicate, translated into Sanskrit, faxed and emailed and hand delivered between the hours of 4:45 and 4:51 P.M., Fridays only. 

We've all experienced horror stories, none worse than the County Court JA who was rude to the Governor's staff who was calling to tell the Judge that he had been appointed to the circuit court. Based on the JA's attitude, the appointment was rescinded in light of the Governor's opinion that his staff needed more training and experience. 

But in no particular order, we bring to you the pleasurable experiences we have had in the last few months with JAs. Starting with Judges De La O,  Tinkler-Mendez and Ruiz, their JAs email you reminders of upcoming court appearances. Very professional and above and beyond the call of duty. 

Judge Andrea Ricker Wolfson's staff was praised us in an email recently:
"Dear Rumpole: The other day I had a case in Judge Wolfson's courtroom. The start of court was delayed for some time and as I approached the door and read the sign and then started to walk away the bailiff came out to let me know that the prosecutors were in the courtroom and I could go inside and speak with them. It's a small thing, but as it unfolded it showed me that the Judge has picked a staff who cares."

SHOOT FIRST
The embattled Stand Your Ground law is facing changes in the current legislative session. The legislature is fixin to make  it tougher for prosecutors, shifting the burden of proof during the hearings to the prosecution to disprove that the defendant acted in self -defense.

Coming soon:  some legislators have been heard mumbling that maybe the entire burden of proof should be on prosecutors to prove a defendant guilty. They've even bandied about a law presuming the defendant innocent. 

Meanwhile in death cases, the legislature, in response to criticism that Florida's statute is also unconstitutional because it allows  for a non-unanimous recommendation of death, has dug their collective heels in, not allowing commie-liberal Supreme Court Judges in Washington like Alito, Thomas and Scalia to push them around. Although Florida prosecutors have recommended raising the recommendation for death to 9-3, the legislature has responded by considering lowering the recommendation for death to "anyone who tweets that the defendant deserves to be fried."

We'll keep you updated on the musings of these great legal minds. 

See You In Court. 



Tuesday, January 26, 2016

BREAKING NEWS ABE VIGODA DEAD....REALLY

Character actor Abe Vigoda, perhaps the celebrity most associated with fake internet rumors of his passing, has in fact passed away today at the age of 94.  Best known for his roles as Fish on the TV sitcom Barney Miller and Sal Tessio, as a double-crossing  mafia solider who tries to sell out Michael to Barzini in the Godfather. Vigoda as Tession utters the famous line  "Tom can you get me off the hook? For old times sake?" after his role in trying to set-up Michael is discovered and he is confronted and is being taken away to be clipped. 

"Tell Michael it was only business. I always liked him."

Some judges should study that line and act accordingly when it comes to judicial races and contributions. It's strictly business. 

See You In Court. 



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

Sunday, January 24, 2016

CHAMPIONSHIP SUNDAY

Many people have emailed us for our picks. We take no position because we don't think the teams we are rooting for will win. But because our travels this week took us through a night in Vegas, we made the following plays:

Broncos to win +130, money line.

Cardinals to win +165, money line.

Broncos- Cardinals parlay.

Broncos, Cardinals, Over, Over teaser.

Saturday, January 23, 2016

FREAK RAIN SHOWER HITS MEDLEY

A freak rain shower, lasting several minutes, dumped an unexpected quarter inch of rain on the South Florida township of Medley yesterday, surprising residents and shoppers, and drenching several unsuspecting people out for a walk. No injuries were reported. 

Meanwhile a snowstorm hit DC, NYC, Philly and most of the northeast yesterday. There's lots of snow and stuff. The storm is going to last until tomorrow. 

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. 

Thursday, January 21, 2016

PAUL KAMINISKY HAS PASSED AWAY

Assistant Public Defender Paul Kaminsky passed away this week. 

Paul had a well deserved reputation as one of the nicest lawyers at the PDs office. He always had time to mentor a young lawyer. 

Funeral Services on January 22, 2016 at Mount Nebo/Kendall Memorial Gardens at 5900 SW 77th Avenue at 2PM. 

We didn't know Paul very well, so if you post a comment we might just put it up here on the front page. 

Like this wonderful comment:



Paul was a true professional. He spent the last several years 
of his career at the PD's office as a staunch advocate for the 
mentally ill. He was one of the smartest people I know. 
A devoted husband and father to 14 year old twins. 
He was also one of my closest friends. My brother. 
My life was truly enriched by his friendship. 
He will be forever missed. Rest in peace my dear friend. 
Gale Lewis

Wednesday, January 20, 2016

AND NOW A JUDGE COMMITS A CRIME?

We received the below stated email from a source who was present in embattled Judge Seraphin's courtroom today. We've been waiting for this situation to arise for some time. 

Judges, by virtue of the threatening signs that they post in their courtrooms, often threaten to confiscate the phone of a person in their courtroom. 

By what right and authority can a judge take a piece of personal property of another person? 

None that we're aware of. 

Florida's Forfeiture statutes state (in part)

(1) It is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners and lienholders and to authorize such law enforcement agencies to use the proceeds collected under the Florida Contraband Forfeiture Act as supplemental funding for authorized purposes.
§ 932.704, Fla. Stat. Ann.

(1)(a) Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, may be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.
§ 932.703, Fla. Stat. Ann.

Judge's aren't (as surprised as some of them may be to read this) law enforcement officers or agencies. Using a phone in court is not a violation of Florida's Contraband Act (unless you're using the phone to commit a crime). 
As such Judges have no authority to seize the personal property of another individual, even if that person has the temerity to ignore the judge and play candy crush while sitting in court and eating a bucket of popcorn (there is no law against eating in court either). 

So with the law being firmly established we turn to the kerfuffle in Seraphin's court on Wednesday:

A wild scene in Judge Seraphin's Courtroom today...

Judge Seraphin's bailiff took away some guy's cell phone because the guy was texting while he was sitting in the gallery. Instead of asking the guy to leave to text outside the courtroom, Judge Seraphin took the phone from his bailiff and started looking through it. He was not a happy camper. The Judge then decided to hold the guy in contempt. All the while the morning calendar was supposed to be going on. 

The Judge decided to hold a mini rule to show cause hearing for why the guy shouldn't be thrown in jail. Pretty sure a Judge can't do that without going through the proper procedures for notice and whatnot, but Judge Seraphin had it out for this guy. The Judge must've realized he couldn't just throw the guy in jail on the spot...so he appointed the PD to represent him. The PDs advised the guy not to say anything--as any good attorney would advise his client to do--but the guy's silence made Judge Seraphin even madder. The Judge then demanded the guy apologize, on the record. The PDs told him just to do it and he did. The Judge was then satisfied with himself. And he gave the guy his phone back and let him sit back down in the gallery. All in the middle of the morning calendar. 

Rumpole notes ominously, as near as we can tell, depriving the personal property of another individual without legal justification, even temporarily, is theft under Florida law. If the phone was worth more then $300, then it could be grand theft. Directing another to do it could well constitute a  plan to conspire, combine and confederate to commit a crime. Not smart. 

It's probably not a good idea to steal a phone while sitting on the bench when you have already alienated most of the female voters in Miami-Dade County with Neanderthal like views about breast-feeding. We mean, we're not Donald Trump or Karl Rove, but still, this can't help a candidate vying for re-election, unless the Judge subscribes to the view that any publicity, no matter how bad, is good publicity. 

See You In Court, where it's not polite to play Candy Crush on your phone in court, but it's not against the law. 

BAILIFFS ARE CLOSING COURTROOMS AGAIN ON THEIR OWN

It keeps happening. 

Some lunkhead wearing a uniform makes a statement before the Judge enters the courtroom that only defendants are allowed in the courtroom.  Then he kicks out everyone else.

News flash: courtrooms are public places.  Courts in Florida are open proceedings. 
There are of course exceptions. This is not about keeping a court open if a child is testifying. This is about public access to the daily administration of the courts in Miami-Dade. 

If this keeps up, we may have to file a lawsuit.

Crowded courtrooms? Call the county commissioners and get them to fund a new courthouse. Not our problem. Go in the hallway and get a list of names of defendants who are in the hallway. 

But you cannot just kick people out of an open courtroom because its a Tuesday and court was closed Monday and its a big calendar. 

Both the Sixth Amendment to the United States Constitution and article I, section 16 of the Florida Constitution provide the accused with the right to a public trial. While we recognize that the right of access in a criminal trial is not absolute, the circumstances allowing closure are limited. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). In order to justify any type of closure, whether the closure is total or partial, the court must find “that a denial of such right is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest.” U.S. at 607, 102 S.Ct. at 2620.

Alonso v. State, 821 So. 2d 423, 426 (Fla. 3d DCA 2002)

See you in open courtrooms. 


* Well, we'd have to hire someone. We don't know how to file lawsuits. 

Tuesday, January 19, 2016

E-LEGAL

DOM has blogged about the CJA panel. One of the issues that was discussed was E-discovery. 

The Feds used to turn over a few pieces of paper in a massive conspiracy trial that lasted six months, And half the lines on those pages had been blacked out. 

Now they turn over 11 disks of material which, if printed out, would fill multiple filing cabinets. And they won't turn over an index to the materials, or a list of those materials they are going to introduce. 

Which way was better?

Tuesday is the first day back after a long weekend. It would nice, while winding our way through the intricacies of the courthouse to be able to sit down and have a cup of coffee in the El Chapo Cafe. 

But it's only been closed about six months now. And you were expecting speed and efficiency? 

Who's in trial? 
Not us. For once. 

See You In Court. 


Friday, January 15, 2016

THE NEW DEATH STAR

In early 2016 the rebel alliance scored it's biggest victory yet, knocking out the death star of the evil Sith Lord Darth Scott (R-Florida). 

Darth Scott has re-convened the Galatic Senate to rebuild his machinery of death.
"There is no civility. Only Politics." Palpatine. *

Here's what we know about the status of the death penalty in Florida: Legislators in Tallahassee are rushing...rushing to re-enact the death penalty. They want to do it in less than a month. 

It's taken six months for the remodeling to begin on the El Chapo Cafe in the Justice Building. But law makers in Florida are going to rebuild a death penalty statute in less than 30 days, excluding work not done on Sunday, the Sabbath,  and on days legislators are hung over from too much wine provided by lobbyists during  assignations with their mistresses. 

In Florida we take more care with building the Cafes that serve us cafe con leche, than we do with creating laws to kill people. 

Today, as you  read this blog, children in Florida are waking up hungry. They and their families don't have health insurance. On their way to school, children are ducking stray bullets as gun violence continues its assault on our world (sad fact- more Americans are killed every year by a gun than died in the entire Vietnam war; more Americans are killed by guns in 45 days than died on D-Day). Children are attending under-funded schools while their parents work two and three minimum wage jobs to pay the bills. 

But the legislature is going to make damn sure that if anyone in this family struggling for daily survival is killed by someone with a gun, well then "dam gummit- we are going to spend the next thirty years and several million dollars to execute that son-of-a-bitch and let that family know we care about them." (poignant pause while the legislator shifts the bible from one hand to the other, scratches themselves under their overalls, and uses a spittoon.) 

This is madness.  "Insanity is doing the same thing over and over expecting different results."  Boba Fett.  Or maybe it was Sy Gaer. 

If we have a limited and fixed sum of money to devote to a problem in society like murder. And we know that most murders are committed with firearms. We have two choices to spend that money: 1) on removing the instrumentality that is causing the murder or 2) punishing the person who committed the crime after the fact. 

Wait! "Guns don't kill people. Liberal, Muslim ISIS members invited into this county by Obama kill people." We almost forgot. 

We don't stop murder. As a god fearing christian society built on following the commandments of the bible we are going punish those that offend the lord and the laws of decent society. 
("Vengeance is mine and I will repay sayeth the lord" Romans 12:19). Well, ignore that part of the bible and focus on the part that commands a society to spend several million dollars to strap a person to a gurney and stick a needle in their arm so long as they have intelligence equal to or above mildly impaired.  Put another more crude way- using outdated language- we will execute the retarded so long as they are just mildly retarded. 

And so, as myriads of inspectors parade through the El Chapo cafe (move that chair away from the window- (fire code) move that freezer another six inches away from the wall and the mouse droppings (health code) ) our representatives are quickly pecking away at their typewriters writing laws so as to make sure not one person in Florida evades the new death star. Not one.  

This is madness. 
See You In Court. 


*Sheev Palpatine was either the senator from Naboo and secretly a Dark Lord of the Sith, or a republican state legislator from Two Egg Florida dedicated to the proposition than any decent god fearing society must have the death penalty. 

Wednesday, January 13, 2016

WHERE HURST WENT WRONG

The United States Supreme Court found Florida's death penalty statute unconstitutional in Hurst v. Florida.  
But the court dropped the ball. Or more accurately the court didn't even take a swing at a hanging curve ball. 

Here's what the United Supreme Court did: it invalidated Florida's death penalty statute because the judge instead of the jury is the ultimate decider of whether the defendant should be sentenced to death: 

The State fails to appreciate the central and singular role the judge plays under Florida law. As described above and by the Florida Supreme Court, the Florida sentencing statute does not make a defendant eligible for death until “findings by the court that such person shall be punished by death.” Fla. Stat. §775.082(1) (emphasis added). The trial court alone must find “the facts . . . [t]hat sufficient aggravating circumstances exist” and “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” §921.141(3); see Steele, 921 So. 2d, at 546. “[T]he jury’s function under the Florida death penalty statute is advisory only.” Spaziano v. State, 433 So. 2d 508, 512 (Fla. 1983). The State cannot now treat the advisory recommendation by the jury as the necessary factual finding that Ring requires.

Here's what the court didn't do: invalidate  Florida death penalty statute because it allows a jury to recommend a sentence of death by less than a unanimous vote. 

So as you are reading this blog,  there are legislators in Tallahassee who, between expectorating mouth-fulls of tobacco juice, are mulling around saying "so all we have to do is re-write this doggone law and let the damn jury decide to fry the defendant. An it don't even have to be unanimous. So lets go get Jim-bob, he knows how to use that dang computer writer thingy. "

Considering the legislature's prior well known distaste for allowing judge's any say in sentencing, this shouldn't be too difficult for the denizens of Tallahassee. 

Hurst was a win. Just not a big win. 

See you in court. 

Tuesday, January 12, 2016

HOLD ON A MINUTE VOLDOMORT, THAT WAND DOESN'T WORK ANYMORE

In an 8-1 decision SCOTUS has ruled that the death penalty scheme in Florida is unconstitutional under the 6th Amendment.

In Hurst v. Florida the justices, through Justice Sotomeyor stated:

Any fact that “expose[s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict” is an “element” that must be submitted to a jury. Apprendi v. New Jersey, 530 U. S. 466, 494.Applying Apprendi to the capital punishment context, the Ring Court had little difficulty concluding that an Arizona judge’s independent factfinding exposed Ring to a punishment greater than the jury’s guilty verdict authorized. 536 U. S., at 604. Ring’s analysis applies equally here. Florida requires not the jury but a judge to make the critical findings necessary to impose the death penalty. That Florida provides an advisory jury is immaterial. See Walton v. Arizona, 497 U. S. 639, 648. As with Ring, Hurst had the maximum authorized punishment he could receive increased by a judge’s own fact finding.  


That this Court upheld Florida’s capital sentencing scheme in Hildwin v. Florida, 490 U. S. 638, and Spaziano v. Florida, 468 U. S. 447, does not mean that stare decisis compels the Court to do so here, see Alleyne v. United States, 570 U. S. ___, ___ (SOTOMAYOR, J., concurring). Time and subsequent cases have washed away the logic of Spaziano and Hildwin. Those decisions are thus overruled to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury’s factfinding, that is necessary for imposition of the death penalty. "


It should be noted the court specifically refused to rule on the State's argument of a harmless error in this case, so what does this mean?  Are all death row inmates now entitled to re-sentencing hearings?  Death qualified juries for all?  Commutation of sentences?  The emptying of death row?  It would appear that way.


Put your pen away Governor Scott.  No more warrants for now.

Monday, January 11, 2016

THIS IS GROUND CONTROL

Longtime and careful readers of the blog know that we are, at heart, cosmologists. 
No,  that does not mean we are interested in nails, make-up and hair styling  (as a Judge who once saw a book we were holding on cosmology asked us - true story.). It means we, along with the other great minds of the twenty-first century study the origins of the universe and ponder questions about time, space, the unification between quantum mechanics (the operation of very very small particles) and special relativity (the operation of spacetime (yes, that should be one word) ).  In our cosmological world we call this GUT =Grand Unification Theory. 

BREAKING NEWS....we interrupt this fascinating article to inform you that El Gordo Cafe, the new food service area in the REGJB will be opening in February...2020. And as the multitude of bureaucrats who have worked diligently (remember the promise of food trucks to tide us over?) to bring a dining establishment back to the REGJB will tell you, this is ahead of schedule. Yup, only four short years until the folks who run things give us the ability to get a salad for lunch or a pastellito for breakfast at our beloved court house. 

Back to Cosmology. 
Many of us Cosmologists are thinking lately about what was before the Big Bang? The Big Bang was the start of it all- when in a tremendous explosion of heat our universe emerged from a particle about a million-billion-billion times smaller than a single atom. 
But what was before then?

There are two theories. One is the Two Headed Time theory- that for billions of years before the big bang there was a universe shrinking with time moving backward until the universe collapsed upon itself and then ...BANG! The universe began to expand. We like to think of this as the second chance theory. Whatever we screwed up in a prior life/universe- we get to try all over again. 

Or there is the Nothing-ness theory-  that out of nothing, came something, which then caused the Big Bang.  "In the beginning..."
Genesis 2:1 : And the earth was formless and void and darkness was upon the face of the deep and the spirit of god moved upon the face of the waters." 

We know that before the big bang there was nothing. But then there came something, so small and tiny, and yet imbued with the entire contents and energy of the entire universe. This subatomic particle contained all that is and all that will be forever, because special relativity recognizes the law of conservation of mass (the first law of thermodynamics): that for a closed system the mass of the system must remain constant over time. This is commonly expressed as the saying matter cannot be created nor destroyed, merely altered. 

We know  that in Quantum Mechanics there is a proven phenomenon called Q-tunneling in which a quantum particle appears out of nothing in two different places at the same time.  
But where did that particle come from? 
Or was there nothing until the spirit of the almighty moved upon the face of the void? 

What we do know is that the Big Bang did occur. We all came out of that subatomic particle. Even civil lawyers and roller derby and Hialeah and Donald Trump supporters.  

So David Bowie passed away and we've been humming "This is ground control to Major Tom" (which isn't even a great song) all day for some reason. And we've been dabbling in cosmology. 

See you in court. Yes, when it opens in 2020, El Chappo Cafe....Gordo Cafe also emerged from the big bang. (along with cronuts, cheap beer, people who like truck-pulls, bell bottoms, and plaid sports coats, and bunny rabbits and Waterworld and Sean Penn interviewing El Chapo, and the Edsel...and Kim Jong Un's Sushi Chef.....and.... ) 


Saturday, January 09, 2016

SUPER HAPPY

Well lets see if we can't do a blog post without wrongly accusing or insulting any one, shall we?

You know what we find disturbing? Those pictures of North Korean citizens celebrating the news that their country exploded a thermo-nuclear weapon. They're just over-joyed below belief. Their expressions of happiness and joy is so over the top, that it is patently obvious they are coerced into these expressions of bliss. It's troubling. Sort of like those commercials late at night when a few old guys are sitting around talking about how this new catheter is so much better than their  old one. 
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It's scary and we don't really think about this small country ruled by a thirty-something year old tyrant which has hundreds of thousands of people in concentration camps. And we won't think about them until they do something like shoot off a nuke to get our attention. Then what?

NFL Playoffs. 
The playoffs are here. The playoffs are here. And the Dolphins....never mind. 

Chiefs- Texans. The Chiefs and Coach Andy Reid have quietly put together the longest win streak in the NFL this year. That streak continues as they take down the one and done Texans.  Chiefs -3 in an easy one. 

Steelers- Bengals. The best game of the weekend. These teams split the series this year, each winning the road game. The Steelers are without DAngelo Williams, who stepped in after LeVeon Bell was suspended at the beginning of the year, and then later after he busted his knee- and put together a twelve hundred yard season with 11 TDs. This is a big loss for the Steelers.
The Bengals haven't been able to win a playoff game since Reagan was president. The Bengals are without their QB, Andy Dalton, and start AJ McCarron who has gotten better and better since getting the starting job. The Bengals are two point home dogs in a night playoff game. We can see Big Ben winning the game on last minute TD drive, or we can see him throwing a last minute INT. The Bengals will be dropping 7 or 8 into coverage every play and Roethlisberger, without a running game, will have to be pin-point perfect. If he gets hot, Steelers win big. If not, Bengals. Stay away from this, but if you must take the Bengals and the points.