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, June 30, 2016

DOWN GOES BAILEY

The federal age and race discrimination case of Abe Bailey vs. Regional Counsel has been decided by Judge Joan Lenard with a resounding victory for RC3. 
The case pitted two well known and respected attorneys- Abe Bailey and Gene Zenobi- against each other after Zenobi, the second appointed Regional Counsel for the 3rd Region of Florida (Motto: "We also do cases in the Keys and we bet you didn't know that") first demoted Bailey and then fired him. 
The case raised troubling allegations against Gene Zenobi, whose tenure as head of RC3 has been magnificent, bringing a steady hand to a once troubled office. To be accused of age and race discrimination, no matter how unwarranted, is a difficult cross to bear. 
Zenobi was undoubtedly thrilled to read Judge Joan Leonard's forty plus page order  issued Thursday, which exonerated him and his office on every count.  
Bailey on the other hand must be dismayed to see the court accept the defense pleadings and contentions that his work as an assistant regional counsel was insufficient and ineffective to the point he merited being fired. 
This was a slam dunk win for the defense in every way. 



CRASH

Was that a big-time ASA we saw standing in the street Wednesday, near the courthouse in the morning at the corner of Go & Don't Go, his car t-boned into another car? 

We think so. 
Not a pleasant way to start the day. 

 Here's a good read from the SCOTUS Blog- Federal Criminal Statutes are not blank checks for prosecutors. 

What are you doing for the Fourth? 


Tuesday, June 28, 2016

SAY HELLO TO MY LITTLE FRIEND

UPDATE: There's been a terrorist bombing of an airport in Turkey. Many are dead. Many are wounded. 

The Secretary General of the UN (five bucks if you can name him) issued a strongly worded statement condemning the bombing. 
Well, that's that. No terrorist organization wants to be strongly condemned by the UN Secretary General. That will surely end the suicide bombing problem. A strongly worded condemnation will surely ruin their day. 



There was a shooting at a bar named Grumpys. 

So naturally, famed (and often Grumpy) Miami Criminal Defense Attorney Alex Michaels has the case.

Here is the link to the video of the shooting, courtesy of the Miami Herald and David Ovalle (who's never grumpy as long as he has black coffee.) 

Trial set for next month. 

And because he couldn't resist it, Alex Michaels was quoted as saying "Say hello to my little friend." 

Another fun Miami Trial. 

Meanwhile, guns don't kill people. People kill people. Guns are every American's natural born right to have and to hold and to cuddle with and sleep with and you're damn well tootin to use for self defense when the bad guys come. 

Right? 

Right all you fervent protectors of the second amendment? 

Except when your mother has one and uses it to kill you and your sister because she is deranged. Which is what happened in Texas (naturally) the other day. 

 And with all those gun toting Texans wandering around with six shooters strapped to their hips, which is their god-given right as Texans and Americans, none of them managed to shoot the house-wife before she murdered her children in the street.  

The story is here in case you missed it while re-reading the second amendment. 

Yup, what we need is access to more guns, because since terrorists on no-fly lists can buy one or a dozen any weekend, the only way to fix that is make sure the ability to buy a gun gets easier and easier. It certainly didn't stop that woman from getting one and murdering her children. 


See you in court. 

Monday, June 27, 2016

MCDONNELL CONVICTION OVERTURNED

The United States Supreme Court (motto: "eight is enough") unanimously overturned the conviction of former Virginia Governor Robert McDonnell.

This conviction always troubled us. We had some very tangential contact with the defense- and the defense lawyers did a great job protecting the record for appeal. If you have a chance, read the opinion here. 

As DOM said on his blog, hopefully the fact that the U.S. Supreme Court had to first reverse the decisions of the District Court and Appellate Court in denying McDonnell an appellate bond will catch the attention of the lower courts. 

Getting an appellate bond in federal court these days is about as easy as finding a parking spot at the REGJB at 9:30 on a Monday morning. 

See you in court. Long weekend coming up. 

Friday, June 24, 2016

BREXIT


Analysis: The Brexit vote is entirely the reason why we hinted in a previous post that the 45th President of the United States' middle initial very well might be J. 

The Brexit vote was split between older, lower middle class members of the UK, who have suffered under the economic downturns and were slower than most to experience the fruits of the recovery, and younger, more educated and financially successful Britons. While there was a nationalist split as well, which we will get to in a moment, this vote is the result of irresponsible politicians manipulating the fears of unchecked immigration, xenophobia and nativism.

The record shows that a little over 330,000 people immigrated from the EU to the UK last year and a detailed economic analysis shows beyond any doubt that the immigrants' economic impact was a large net positive for the UK. This means that immigrants to the UK brought way more value in taxes and income than they took in social services. But with Turkey's application to the EU pending, and the warnings from nationalistic politicians that upwards of 21 million Muslims would be eligible to immigrate to the UK, this was a vote based on an irrational fear and anger. 

Irrational fear and anger- sounds like a Donald J Trump rally. 

Which is why this vote by our British cousins is a warning sign that should not be ignored in this country. 

Meanwhile. Scotland voted  62%-38% to remain in the EU, thus sparking renewed interest in another Scottish vote to secede from the UK. The Scots, whose economy is doing very well thank you, and who aren't afraid of losing their national identity, voted to remain a member in the largest collective defense-free market union in this world. Smart move. 

England, still suffering from the lingering effects of an economic crisis, has voted to withdraw from the largest free market in the world.  Not smart. 

Final thought: while listening to the BBC this morning, exit polls are showing that many of those who voted for Brexit are in shock. Their comments include statements like "I never thought this would happen" and the sentiment that they didn't really want to win, but just wanted to register a protest vote. 

England will long regret the vote on June 23, 2016. 

Lets hope that the United States of America will not similarly regret the results of the election on November 8, 2016. 

See you in court, clearing up yesterday's messes. 




Wednesday, June 22, 2016

COURAGE

BREAKING #2 THURSDAY JUNE 23
REGJB MIAMI CRIMINAL COURTHOUSE CLOSED

Sort of 

All morning cases are canceled. There is chatter- confirmed with police officers- that there is "a legitimate threat" about two pipe bombs. 

However, Afternoon Bond hearings are not canceled. 

Which means, someone doesn't care very much about the safety of the afternoon bond hearing judge, staff, lawyers, and the public attending those hearings. 

This doesn't make any sense.  Unless there is NOT a credible bond threat and the chief judges just decided to pull the plug on court this morning  


BREAKING BOMB THREAT AT REGJB
COURTHOUSE EVACUATED 




UPDATE: Thursday is all about voting...

In our dear England, today is the day we vote on whether to remain in the European Union. Rumpole says vote to remain. 

In the House Of Representatives, Democrats are staging a good, old fashioned sit-in, refusing to let the House come to order until they are guaranteed a vote on the firearm's bill. 

"All we are saying, 
is let us have a vote"

Meanwhile in the REGJB, there are several important Possession of Marijuana cases being litigated. Throw in some disorderly conduct and loitering and prowling cases, and you have some serious legal stuff being done. 


Courage is doing what you think is right despite popular opinion to the contrary. 
As President Kennedy was fond of saying, the hottest places  in hell are reserved for those, who in times of moral crises, do nothing and preserve their neutrality. 

So all praise is due for the group of senators, who in the face of 90 percent of the American public approving of a ban on the sale of firearms to those people on a terrorist watch list, have held their ground, and refused to let the law pass. 

Yup, they are doing the lord's work. 

Either that or they are the most morally bankrupt, stupid group of politicians who so fear the NRA, that they are willing to let terrorists buy weapons at good-ol USA gun shows. Even when those weapons shoot up a night club or a school. 

Disgusting. 

See You In Court.  

Tuesday, June 21, 2016

THE SKY IS FALLING

The sky is falling. Terry stop suppression motions are dead. Oh my!
The Supreme Court's decision in Utah v. Streiff spells the end of the fourth amendment. 
Oh no Mr. Bill!

Query: When's the last time a court granted a Terry Stop motion or otherwise granted a motion to suppress evidence based on an illegal stop or search or seizure? 
Federal Court practitioners? Do you even get an evidentiary hearing on these motions? 
Inevitable discovery anyone? 

The death of the exclusionary rule...

None of you saw this coming? Really? 

Scalia would have piled on. 

See you in court, where motion practice is dead.  You wanna win a case? Put on your trial suit. 


Sunday, June 19, 2016

PROSECUTOR SUSPENDED

Relax....not in Miami. Surprisingly, not in Broweird, but we could give you a list....

Nope. This ASA said this about the community he helps protect:

"a melting pot of third-world miscreants and ghetto thugs" and a "national embarrassment."

And was promptly suspended from his office. 
Drum roll please...

It's ASA Kenneth Lewis of Orlando and the Orange County SAO
A Nova Law grad. In the Bar since 1992. May we suggest a change of venue? And perhaps a year off somewhere clearing his head. 

Nice. 

Not. 

The story is here.  And all over twitter. 

Query: Where are his First Amendment Rights to say what he feels about an issue? 

See You In Court. 

Thursday, June 16, 2016

HAVE ANOTHER CUP OF JOE

Good news for those young ASA's we see trudging every morning from their county court headquarters-lair, via an easement appurtenant behind a row of houses/offices (and they know what that is since they have all recently studied for the Bar) and through our Lot 26, bleary-eyed, lugging strollers laden with boxes filled with cases of driving while not wearing corrective lenses, and possession of undersized Snook. These new eager lawyers are caffeine fueled, snapchatting their double espressos and extra-large caramel cafe latte's. Drink-up we say, and now says the World Health Organization- as reported by the Lancet Oncology magazine that we often peruse. 

COFFEE IS NOT A CARCINOGEN. Hurray! 
This study reverses a twenty-five year old study which seemed to indicate that coffee caused bladder cancer. 

But, don't drink it too hot. Anything about 175 degrees is a danger zone. Consuming hot beverages could cause esophageal cancer.   So make that double-caramel-cafe-latte iced, and have one on Rumpole. And Snapchat it.

BROWARD SENTENCING

Check out the JAA Blog. 

They have a portion of a sentencing transcript where a defendant of color asked for leniency saying that he had learned his lesson after being incarcerated after what appears to be a burglary. The defendant said he didn't want to be judged on the color of his skin. The judge, who appears to be a person of color (no one is identified in the transcript except) replies that s/he has been judges by the color of their skin their whole life, and even worse, the actions of the defendant will make the victim in the case judge everyone of the same race of the defendant they encounter worse, based on the actions of the defendant. 

Good sentence? Bad Sentence? Would a Miami Judge say that? Would Ovalle's finger's explode as he tried to tweet that while covering a sentencing? 

See You In Court. 

Another approximately 100 deaths by handguns yesterday that didn't make any headlines because they weren't the results of a mass shooting. 




Monday, June 13, 2016

WHERE IS OUR BOBBY

Before we begin, a footnote- 87 people died by handgun violence on Monday, June 13, 2016. About an average day in the United States. About 32,500 people will die in 2016 from handgun violence. 
There are 88 guns for every 100 people in the United States. We have two variables here- deranged people and a proliferation of handguns. And because of the cowardice of politicians, we only want to discuss one of the two problems- and it's not the handguns. For shame.  "The hottest places hell are reserved for those, in times of moral crises, preserve their neutrality." 
President John F. Kennedy, misquoting Dante.  

WHERE IS OUR BOBBY?

In the "long, hot summer of 1967, snipers in Newark and Detroit fired upon police and firefighters. Cities burned.  In 1968, the Tet offensive showed that the war in Vietnam could not be won. Dr. Martin Luther King was killed. President Johnson sent tanks and troops into America's inner cites, and Southeast Asia. The times cried out for a leader who could speak to people of color who rioted in ghettos, and were lynched and murdered in the deep south for just trying to vote; students on protest lines, and white, blue-collar workers who feared them both. 

President Johnson wouldn't run for re-election. Always politically astute, Johnson knew he couldn't win and would probably not even be his party's nominee. 

Who could lead the county out of Vietnam, start the long and agonizing process of racial acceptance, and bring some peace and faith to a  white America bewildered at the anger and rage?  Could one man do this? Could any politician speak to everyone and speak the truth and not just say what people wanted to hear?  

Enter Bobby Kennedy. 

Today we  have troops in Afghanistan and Iraq and there is a humanitarian tragedy in Syria calling out for American leadership. The planet is overheating, threatening the survival of the next generation. School children are gunned down in mass murder, as are young gay people dancing at a nightclub, and every-day workers at their job. Radical Islamist terrorists are shooting people in France and trying to strike the United States again. Families are working two and three part and full time jobs just to pay their rent or mortgage. 

The country and the world are in crisis. It is a time for leadership. 

Where is our Bobby Kennedy? 

CHAOS IN BROWARD? 

According to the JAA Broward Blog here, judges running for re-election are out, as are the judges who are supposed to be covering for the judges running for re-election. Morale is at an all time low (What do you expect? It's Broweird.).  And the chief judge won't return anyone's phone calls and spends his time planning lunches for visiting 4th DCA judges. 
What to do? 
As if we care.  It's Broweird. 

See you in court. 




Sunday, June 12, 2016

ORLANDO TRAGEDY

The deadliest shooting in U.S. History.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

Thursday, June 09, 2016

SENTENCING - SENDING A MESSAGE TO THE COMMUNITY .....


THE CAPTAIN REPORTS:

UPDATE: Vice President Joe Biden wrote an open letter to the victim in the Stanford rape case that is a must read.  Please check the comments section or you can read the entire letter by going here.

SENTENCING ISSUES PART DEUX ........

QUERY:  How many trial court judges have you encountered that launched your client at sentencing with their intent being  sending a message to the community?

While our humble Blog author is hot on the subject of sentencing, let's examine what a recent 4th DCA decision said about sentencing in criminal cases.

The case is Futo Charles v. State of Florida found at No. 4D11-3314 decided on May 31, 2016. In a 2-1 decision authored by Judge Stevenson, the court affirmed the convictions of the defendant on several gang related crimes. 

"After a two-week trial, the jury found Charles guilty of racketeering, conspiracy to commit racketeering, possession of Ecstacy/MDMA, and possession of marijuana. He was also convicted of twelve predicate offenses, but was found not guilty of all of the predicate offenses that involved gun violence."

Charles' low end of the guidelines scored him at 79.8 months.  At sentencing, the ASA argued to the court that it should impose the maximum sentence based on Charles' long criminal record.  The Assistant State Attorney said to the court that it should "send a clear message to everyone who decides to participate in a violent criminal organization" that "a life in crime does not pay."

Trial Court Judge Karen Miller sentenced Charles to nearly 66 years FSP.

Here's where it gets interesting.  In the Opinion, the court stated that "when a trial court relies on impermissible factors in sentencing a defendant, the court violates the defendant’s due process rights".

What, pray tell, were the impermissible factors that Judge Miller used here?

Well first, the appellate court reminds us of what factors the trial court judge can consider, including: the "defendant’s criminal history, employment status, family obligations, and over-all reputation in the community."

It was at that point that Judge Stevenson wrote that "the CPC does not list sending a message to the community or deterring persons other than the individual defendant being sentenced as sentencing factors properly considered by trial courts."

"Trial judges should not consider general deterrence when imposing individual sentences for several reasons. First, the goal of general deterrence is already addressed by the sentencing scheme put in place by the Legislature. Second, the CPC does not include general deterrence in its "unambiguous" list of factors a trial court may consider in sentencing an individual defendant. § 921.231(1). If the Legislature had intended to include general deterrence as a permissible sentencing factor, "it would have done so." Norvil, 41 Fla. L. Weekly at S191. Third, we find it fundamentally unfair to single out one defendant for especially harsh treatment in order to serve the utilitarian purpose of sending a message to the community. "

The 4th therefore held that "where a trial court imposes a sentence on an individual defendant with the intent to "send a message" to the community, the sentence rests on an impermissible sentencing consideration."  The sentence was reversed and the case sent back for sentencing before a different trial court judge.

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




Tuesday, June 07, 2016

THE STANFORD RAPE CASE

UPDATE BELOW

The internet is aflame with the sentence issued to Brock Turner by Santa Clara, California Judge Aaron Persky.

Here are the facts: Turner was a freshman on the Stanford swim team. He came upon the victim, who was impaired by alcohol and unconscious, and raped her over a garbage dumpster. Two students walked by, Turner tried to run. They tackled him and held him until the police arrived.

The sentence: six months prison, 3 years probation, lifetime sex-offender status.

Rape is never ever justifiable. Let's start the discussion with that. 
Now let's ponder this: should rape be a crime different from robbery or theft or fraud, or aggravated battery or attempted murder in which the sentence is severe with no possibility of remorse and rehabilitation? 

Victim advocates will correctly say that our last statement written by someone who was never raped, and who defends people charged with crimes, and doesn't fully understand the lifetime physical and emotional problems victims suffer. True. But this is a discussion that is important. 

The letters: Two letters were read at sentencing. One by Turner's father, one by the victim. 

The Father's letter: 


First of all, let me say that Brock is absolutely devastated by the events of January 17th and 18th 2015...He would do anything to turn back the hands of time and have that night to do over again. In many one-on-one conversations with Brock since that day, I can tell you that he is truly sorry for what occurred that night and for all the pain and suffering that it has caused for all those involved and impacted by that night. He has expressed true remorse for his actions on that night.”

...
His life will never be the one that he dreamed about and worked so hard to achieve...That is a steep price to pay for 20 minutes of action out of his 20 plus years of life.
Dan Turner said he and his son were “totally in awe” of Stanford’s campus, and noted with pride the school’s 4 percent acceptance rate.
“He excelled in school that quarter earning the top GPA for all freshmen on the swim team...What we didn’t realize was the extent to which Brock was struggling being so far from home. … When Brock was home during the Christmas break, he broke down and told us how much he was struggling to fit in socially.
“In hindsight, it’s clear that Brock was desperately trying to fit in at Stanford and fell into the culture of alcohol consumption and partying,”
“He will never be his happy go lucky self with that easy going personality and welcoming smile,”
“His every waking minute is consumed with worry, anxiety, fear, and depression...You can see this in his face, the way he walks, his weakened voice, his lack of appetite. Brock always enjoyed certain types of food and is a very good cook himself. I was always excited to buy him a big ribeye steak to grill or to get his favorite steak for him. … Now he barely consumes any food and eats only to exist"

Rumpole says: This letter is tone deaf. But it is a father's letter, written from the heart, about the  self-destruction of his son's life. 

We're going to conclude with the victim's letter, but here is what is happening now. The judge issued the sentence after a trial on the issue of consent. The sentence was roundly condemned by the prosecutor and in social media. There is a drive to recall the judge or have someone run against him in his re-election bid. The father's letter has been criticized . 

Our question is much simpler, and yet harder: You are the judge- what is the sentence? 
UPDATE: A reader wrote a great comment. What do think the sentence would have been if the defendant had been African-American or Hispanic? What if the defendant wasn't a college student but a janitor at the college? Same age, but not a student. Excellent questions. 
Now here is the victim's letter, powerful and simply devastating, starting off with "You don't know me, but you've been inside of me." Read the whole letter. It is as powerful recitation of being victimized that we have ever read. 



Monday, June 06, 2016

SERVICES FOR ED CARHART

Here is the information for the services for Ed Carhart, courtesy of his friend Jim Woodard:

This is the information concerning services for Ed for those that would like to pay respects and show support.
James Woodard
 
Celebration of Life Service for Edward Carhart
Services to be held at 1:00 p.m.Saturday, June 11, 2016, at Coral Gables Congregational Church, 3010 De Soto Blvd., Coral Gables, FL 33134. Reception to follow. In lieu of flowers, please donate to Charcot Marie Tooth research at cmtusa.org

Saturday, June 04, 2016

THE GREATEST 1942-2016

May 25, 1964 Lewiston, Maine. Ali-Liston II First Round KO











Thursday, June 02, 2016

ANOTHER DEATH PENALTY WIN

BLOG RUCKUS UPDATE: 
We received an email from the attorney who we were upset with ( it took a few days). He apologized for the contretemps. 
He said he was taking down the automatic feed. In response to that we are deleting our last two blog posts. 
Even Steven. 


It just keeps getting worse and worse for proponents of the death penalty (Motto "kill em all, guilty or innocent.") .

Judge Brennan granted a defense motion to strike the death penalty because the ASA failed to file the new notice of intent to seek death with the applicable aggravating factors within the time periods prescribed by the new statute. 

Chris Decoste with RC3 with the nice win. 

This decision is case specific and doesn't have the precedential  value of Judge Hirsch's order, but a win is a win. 

Query: is the death penalty dead?

RUMPOLE RUCKUS

Lots of negative comments about our actions with the blog-thief, even from long-time and careful blog readers. 

Take our new poll.