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

Tuesday, March 14, 2017

IN DEFENSE OF FIRE

UPDATE: Judge Hanzman didn't hold Gutierrez in contempt. He reset the case for sixty days while the SAO investigates. The PDs have taken the case over for sentencing. 
The Herald article is here. 
Hanzman also expressed a healthy contempt (pun intended) for the claim that the pants caught on fire accidentally. But he also indicated that he thought contempt to be a long-shot.  This is what a good judge does- not rush to judgment. Lets see what happens in sixty days. 

We rise to defend Stephen Gutierrez, Esq. 
When last we left the young defender, his pants had caught fire during closing argument in an arson case. 
We have no inside knowledge, but it probably was a stunt designed for closing argument. 

In the 1970's, young Assistant Public Defenders Roy Black, and Jack Denaro took off their shoes and put their socks on their clients' hands while in court, trying to prevent the prosecution from obtaining fingerprints. They then argued that the prosecution needed a warrant. 

Good defense- nay, good lawyering requires disruption. It requires saying NO when everyone in court says "that's the way we've always done it." 

Judge John Kastrenakis, when he was a Dade State prosecutor, sat in court during his closing argument and didn't say a word for (approximately) twenty minutes (could have been longer) to show the jury just how long Joyce Cohen delayed calling the police when she discovered her husband Stanely shot. 

Clarence Earl Giddeon's petition to the Supreme Court requesting court appointed counsel when he "wasn't entitled to it" was five  handwritten pages. He changed criminal law forever. 

Criminal defense attorneys have an obligation to be disruptors in defense of their clients. 

One of the greatest trial lawyers of the 20th century- Edward Bennett Williams- while defending Teamster leader Jimmy Hoffa in a bribery case in DC, in which the jury had eight African-Americans, brought in former black heavyweight champ Joe Louis to warmly greet Hoffa in view of the jury, and then  sit behind Hoffa during closing argument. 

Miami's own great defense attorney- the Late Richard Sharpstein did a closing argument in federal court wearing an old raincoat, an old hat, and doing an impeccable Colombo imitation. 

Some will point out that Gutierrez's "stunt" endangered people in the court. Probably not, but we all know playing with fire is not the safest thing to do. But we'd rather risk a small fire than the conviction of an innocent man. 

Our point is this- Gutierrez should not be held in contempt. What he did was NOT designed to undermined the integrity of the court. He was trying to be a disruptor. He was thinking outside of the box. He was dedicated to his client and tried to win. He didn't lie to the court. He didn't steal funds from a trust account. He didn't try and falsify testimony. 
All he did was try and do something different to win a case for his client. 

Edward Bennett Williams, in that great courtroom in the sky is looking down. And he sees the drones of male and female criminal defense attorneys walking to the podium. Giving jurors a small smile. Thanking them for their service. Summarizing the evidence. Maybe using that Reasonable Doubt chart that falls in and out of favor every few years. And they probably win a few and lose a few. 

And then he sees Stephen Gutierrez and says:  "I like that kid. He reminds me of myself. He's got guts. Moxie. He's dedicated to his client. He doesn't have a lot of experience, but he has heart and I'll take that every day."

So will we. 

Judge Hanzman, do not hold Stephen Gutierrez in contempt. Do not quash creativity. There is another way to resolve this. 

Your obt' srvt, 
Horace Rumpole, Esq. 






47 comments:

Anonymous said...

Awesome

Anonymous said...

Counterpoint: This was a kid two years out of law school handling arson, a charge punishable by up to fifteen years in prison (double that if this was F1 arson). Why is a child handling an arson case? Does anyone really think someone with two years of criminal experience under their belt is qualified to defend an arson case? At the PD office, *maybe* you're handling C cases 2 years in - coke possession, grand theft, easy stuff. Does anyone really think he knows the ins and out of the law, that he knows how to preserve the record, that he knows how to handle a forensic-heavy charge like arson? He was probably barely qualified to handle a DUI trial.

Our hero, with his two whole years of trial experience, proceeds to light himself on fire in front of the jury. Goodbye credibility. You say "moxy," I say rank incompetence that all but guaranteed conviction. Does anyone know if he even moved for a mistrial after that stunt? If he didn't, he truly is a walking rule 3.

A child, handling a case he had no business trying, set himself on fire in front of the jury, literally and figuratively, and his client was convicted. This is nothing to laud. There should be bar sanctions. Contempt wouldn't be unreasonable.

Anonymous said...

Disagree. If you spoke to him or saw him in court you would know he has no business doing this.

He had very low plea offer on the table and his insanity worked against his client.

Crime was on video. He did his client a disservice, and it was personified by the stunt.

Old Guy said...

It was not just a ruse or a gimmick. It was an effort to persuade the jury that the facts could have been as the lawyer manipulated to be in the courtroom. That is a form of fraud on the Court.

I am not for pulling anyone's Bar card, as they are too hard to earn. But this sham needs a serious slap on the wrist.

This is not Roy or jack or Sharpie trying to defend rights or persuade. This was calculated to mislead the jury about the facts.

I like you, Rumpole -- but you called this one incorrectly.

Anonymous said...

That young man is good company.

Anonymous said...

Perhaps you are unaware that Gutierrez has a habit of not showing up for hearings? That he leaves his clients twisting in the wind? That is not the mark of a great lawyer. It is the sign of an idiot who should not be practicing law. And his little mini-arson stunt was not the work of a great legal mind or brilliant litigator. It was the proof that he's a desperate lawyer with no command of the art of trying a case.

Anonymous said...

WONDERFUL POST!

Anonymous said...

SAO is a joke. Police officer Jose Acosta committed non-bondable offenses. Was out within hours. Arrest form says Nebbia needs to be met, but I guess not here.

Anonymous said...

Except he said that he didn't do this on purpose ... Meaning that he both lied to the court and he denied the conviction of his methods. Sorry, but there is a big difference between creative and stupid. This was just a stupid, transparent attempt to show something could "happen spontaneously" by doing something on purpose.

Anonymous said...

I like how Hillary claimed Donald never paid taxes, using loses in the 90's to offset future tax liability. In 2005 he paid 38 million in taxes. That's roughly the same amount of money that shillary took from Saudi donors for the Clinton foundation.

Hillary for prison. In Guantanamo. Hopefully sessions will indict that bitch

Anonymous said...

I don't like what the kid did. I think it is tacky and cheap and makes lawyers look bad. But is it contemptuous? No.

And no, this is not in any way comparable to "Clarence Earl Giddeon's petition to the Supreme Court requesting court appointed counsel when he 'wasn't entitled to it.'" This was a foolish stunt.

Anonymous said...

I predict Hanzman will read him the riot act, and that's all. Not because of your spirited defense, but because Hanzman was a great lawyer, knows how to control his courtroom, and
doesn't need to hold him in contempt. Lawyer has already faced ridicule, is probably scared s-less and warning will be enough.

Anonymous said...

This defendant should be offered to PD as new counsel and the State Attorney should offer him the original plea of 364. Counsel should withdraw and Judge should scare him. No contempt. Refer to Bar maybe. Move on. Next case.

Anonymous said...

Kid should apologize, voluntarily sign up for professionalism class, and agree to have a mentor attorney to consult on any trial cases for the next year. Start with that at any future hearing, and the Judge would be wrong to punish him beyond a stern talking to.

the trialmaster said...

This kid pulled a stupid dangerous stunt in front of the our best judge ever to sit in the REG.(except for the late Ed Cowart perhaps) His stunt should be punished. Judge Hanzman will deal with this novice attorney fairly and hopefully harshly and teach this kid a valuable lesson.

Anonymous said...

Everyone assumes it was a stunt but e-cigarettes, like sonme cell phones, are known to spontaneously burst into flames.

Anonymous said...

Except I've never seen or heard of it happening--despite owning a couple and knowing enthusiasts who own dozens.

Anonymous said...

Hanzman is a pro. told kid that he was highly skeptical of his spontaneous combustion claim( same as clients defense) but signaled loudly to state that proving contempt will be a long shot and not to waste his time. then quickly pivoted to far more concerning issue, client facing a decade in jail due to lousy representation. Suggested this young lawyer step aside so PD can file post trial motions. Guitierez agreed so PD will be appointed Friday. hopefully state will do the right thing and put generous plea back on table. Judge was much more concerned about client than sideshow stunt of novice lawyer.

Anonymous said...

Clarence Darrow, who didnt need an "E" before his cigar, once did something similar. He stuck a thin wire down the center of his cigar, which he then proceeded to smoke during the State's closing.

The entire time, he obsessed over the cigar and tried to ash it... but the ash just wouldn't fall. He acted mystified. He tapped it again and again... the ash stayed put (held by the wire). Soon he had the entire jury staring at this strange, miracle cigar and ignoring the state's close.

The answer, obviously, is to allow smoking again in the courtroom.

Anonymous said...

http://www.miamiherald.com/news/local/community/miami-dade/article138624908.html

"The Miami-Dade State Attorney’s Office has now assigned two of its top prosecutors, Gail Levine and Christine Zahralban, to investigate what happened. Circuit Judge Michael Hanzman on Wednesday allowed them 60 days to conclude their investigation."

Anonymous said...

Why is everyone ASSuming it was a stunt?

earl rogers said...

Clarence was a great lawyer but a horrible client. I had to withdraw after getting him an acquittal in his first Los Angeles jury tampering case. As I recall, he represented himself in the second case but did not use the cigar ash trick.

Anonymous said...

Hanzman is trialmaster. Trialmaster is Hanzman. Only one so pompous would call himself the best judge ever at REG. Neing smart does not make you great, see Milton Hirsch. Oh, wait, maybe trialmaster is Hirsch.

Anonymous said...

Oy, Gail Levine - please, anybody else.

Anonymous said...

Gail is on it so expect the indictment shortly.

Anonymous said...

So, who is and who is not a judge?
Do you have to be a member of the Florida Bar to be a Federal Judge?
Answer: Depends

Victoria Brennan resigned in early December. She's still listed as a judge on the Bar web site. There's a Bar rule that says you must keep your valid address up to date. So much for following rules.

Up until this week, Jason Bloch. Hell, he still lists a URL for the Courts on his web page.

Look up the Federal judges:
Guess who is not a current member of the Florida Bar?
Fred Moreno
Hey Fred, too cheap to pay your dues?

Anonymous said...

The act of starting the file was dumb enough, claiming it was spontaneous makes it a whole lot worse. The judge should hammer him, though contempt probably is unnecessary.

Anonymous said...

Kid needs to be quiet and hire a well-respected attorney to represent and advise him ASAP. He can't be fielding media questions on his own, and needs to learn that the cover-up is always worse than the act. We don't know what really happened, but if it was a stunt as everyone suspects, telling the court it was an accident on multiple occasions is what's going to get him in trouble with the Bar.

Anonymous said...

7:54 - Your'e an asshole. DJT leaked these tax returns because they're the only ones that support he paid taxes at all. He is hoping that this will quell the fire. Meanwhile;e his ties to Russia that the full tax return would show become less important because they have been 'leaked'. He is smart. He's just a liar.

Anonymous said...

You all often attack Broward. Yet, you stand up for a lawyer who is a walking 3.850 and may have cost his client his life. Very few comments at all about what this stunt did to the client. How about if the lawyer serves the difference between the below guidelines plea offer and the sentence because of how little he cares about the courtroom?

Anonymous said...

If you think the Trialmaster is Judge Hanzman or that this Judge would ever describe himself as the best to ever sit at REG your a moron who has obviously never met the guy.

Anonymous said...

We need colorful antics in criminal law; sometimes it works sometimes it doesn't. This is not a big deal

Anonymous said...

7:08. Thank you for calling me an asshole for my political views. I guess you are a member of the tolerant left. Also, do you have any evidence trump leaked his taxes, or are you just pulling a CNN and making up facts? Even though we may disagree politically, you are a fellow American and I love you.

MAGA

Also interesting to note that trump paid in the 25% tax range while comrade Sanders paid 13.5

Anonymous said...

Whoever called Judge Hanzman a "Trialmaster" and "pompous" obviously doesn't know him. What makes Hanzman so special is his brilliance coupled with his humility.

Anonymous said...

he is lying; that is contemptible. if he owned up to it and claimed he was the hialeah version of edward bennett williams, then at least one could debate the point. But he claims like a fool that it was innocent. give me a break. But Rump is right that contempt is not the punishment; bar grievance and reprimand is sufficient.

Anonymous said...

While I agree he should not be held in contempt, I question his judgment in believing that the jury would be persuaded by this transparent ruse. In fact, were I a juror, I would consider the maneuver a display of desperation bolstering the credibility of the state's offer of evidence. Although inventive, inevitably the lawyer did a disservice to his client.

the trialmaster said...

I totally agree with 10:18. I advised all on this forum that when Judge Hanzman left civil for criminal that he is a fabulous judge and will not tolerate fools lightly. I had the pleasure of appearing before US District Judge for the Eastern Dt of NY, Judge John Gleeson who is smart and yet humble while he was on the bench. Judge Hanzman is the same, perhaps better since he came from a vastly successful civil practice and has had to actually sign paychecks. Something that our career ASAs and PDs never had to do.

earl rogers said...

I love it how these MAGA guys are suddenly concerned whether Trump's critics "have any evidence" to support claims against their hero when Donald Trump has built his business and political career on an unending series of baseless and sometime blatant lies.

Anonymous said...

Rumpole, why would you "RISE" to defend this idiot? He is an absolute liability to anyone who has been charged with a crime. He does not go to court, he is ill-prepared and has no clue how to defend a case or seek an appropriate plea. He is a disgrace to our profession.

Anonymous said...

7:59:00 - I'm not tolerant nor staying quiet any longer. Your lack of intelligence in supporting this asshole only makes you one. Your blind support is only exceeded by your lack of clarity. Turning a blind eye to DJT is not making America great again. Its a disservice to what is American.

Anonymous said...

An attorney with two years of experience as a B prosecutor will try an Arson case. Same goes for PD. So why couldn't this attorney try it? I am presuming he has worked as a PD or ASA before.
If his stunt had been successful, people on this blog would be congratulating him. Give him a break, move on, let this young attorney learn and move on as well.

Anonymous said...

Soon enough, Gutierrez will be running for a circuit court judgeship. God forbid.

Anonymous said...

No one tries an arson case two years into their career as a PD here in Miami. You might see a prosecutor trying an arson case after 2 years, but they move faster and there's no 6th amendment problem with an inexperienced prosecutor trying a case that's out of his league. For obvious reasons, society cannot accept a defense attorney being in over his head.

This defense attorney has no prior experience as a PD or an ASA. He's as green as they come.

Anonymous said...

1029----I can't imagine an APD or ASA pulling a stunt as stupid as this. But, your comment misses the point. He didn't just do something incredible stupid in court, he lied about it afterwards (is there anyone who really believes that his E-cig spontaneously burst into flames while he was defending an arson case? If so, I have a bridge to sell you.............). The Bar will do something about his dishonesty. The smartest thing he could've done is own up to his shenanigans and begged for mercy. Now he has a real problem.

BTDT

PS----I won't comment on the personal attacks unrelated to the incident and really don't understand why so many seem compelled to make them on a public blog. Frankly, the malicious name calling in the various posts (on this topic and others) says more about the poster than the person they're talking about. And, it ain't good.

Seth Sklarey said...

Also have to give credit to the late Al Goodman and his talents of legerdemain with his now you see it, now you don't talent of making cigarettes and probable cause disappear before a jury.

Creative stunts are part of the lawyer's bag of tricks. Some work, some don't. You never know until you try.

Anonymous said...

Gutierrez has a Rule 3 in front of Delpino tomorrow where he dragged an ASA's name through the mud.Now it turns out that he helped an AV prep a recantation letter which she has taken back. Judge may be appointing a PD for the young spitFIRE attorney lol

Anonymous said...

Honestly, I would have given Mr. Gutierrez the benefit of the doubt re: this story had I not encountered him while working as a PD. I had a very disgruntled and unhappy client (terrible facts, client was a PRRP, I was his third attorney, you know the drill) and Mr. Gutierrez was shocked when I refused to speak to him stipulating to my ineffectiveness during the plea colloquy so he could handle the client's appeal - of course, after he opened the conversation by telling me how beautiful I was. I later found out that he's actually got a lot of other personal issues, for which I hope he receives help.