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, June 12, 2018

TRIAL LAWYERS BILL OF RIGHTS V3.0

This will be the third time we have reprinted this post. 
It is just as relevant today, with summer vacations approaching (see right #2) this is just as relevant today as it was twelve years ago. It's one of our favourite posts. 

Originally posted January 1, 2006, but just as relevant today.

TRIAL LAWYERS' BILL OF RIGHTS.


The Trial Lawyer needs protection from their biggest enemy.
The one entity that can with a wave of the hand completely screw up years of hard work and preparation. We are speaking of course of the Judiciary, some of whom are our wonderful Robed Readers.

Herewith [ and we strongly invite submissions] is our Trial Lawyers Bill of Rights:


A TRIAL LAWYER SHALL HAVE THE RIGHT

1) TO BE FREE FROM BEING EMBARRASSED AND CHEWED OUT IN FRONT OF OUR CLIENT.
We know we say and do stupid things from time to time. But Judges have chambers- and there’s sidebar. We have enough troubles with our clients without having to deal with them after a Judge has just dressed us down for something in court. [ Half the time the judge is upset because we’re late. Well, usually we’re late because we just spent 45 minutes doing an arraignment in front of the Governor's latest new nominee to the bench. ] 

2) TO AT LEAST ONE WEEK AFTER RETURNING FROM VACATION BEFORE STARTING TRIAL.
This one really frosts our ass a little bit. (Hat-tip to the late, great Neil Rogers on the frost-our-ass- phrase). 
We have an important trial. And when the Judge suggests a date, we tell the Judge we have an FACDL Ski trip for that week. So the Judge gives us a big smile and tells us that sure, she’ll accommodate our vacation, “after all , lawyers are entitled to a vacation as well.
And then she sets the trial for the Monday after we return that Sunday.

Hey- wake up!
Do  you know what’s involved in a trial? Do  you realize that no matter how well an attorney plans and prepares that there are literally dozens of last minute problems that spring up in the weeks and days before a trial? 

No. We can’t fly across the country Sunday night, stagger home at 1:00 am and be fresh as a daisy and ready to go to trial Monday morning dodging the multiple minimum mandatory sentences the prosecution is hurling at us.

 If Judges don’t want us to believe that the reason the majority of them became Judges is because they couldn’t try a case, then show some common sense and give us at least a week when retuning from a trip before trial. This may surprise some of you future Supreme Court nominees, but other than the really successful or truly awful lawyers, the rest of us have more cases than the one case clogging up your precious docket. We have clients that want to see us, employees that need guidance and your equally dense colleagues who want us to try a case in their division on the day we return from vacation.

Sometimes, and we really mean this, we wonder how some of you even got into law school.


3) THE RIGHT TO AS MUCH TIME AS WE NEED IN VOIR DIRE.

First of all, many lawyers who get stuck in a trial don’t try a lot of cases and couldn’t conduct a good voir dire with  Gerry Spence sitting with them as second chair. So you needn’t worry about them taking too much time. They ask a few moronic questions about which section of the Herald the juror’s husband reads and if they will follow the law, and then they stagger back to their table sweating bullets and grab their law school text on opening statements to see what to do next. For the rest of us, the ones who devote time and energy to our craft, a good voir dire is crucial. It is the most important part of the trial. We are not asking you to give us a long leash. Keep the leash short. But as long as we’re asking the right types of questions, then our clients (be it a defendant or the people of the state of Florida) are getting their moneys worth from the advocate they hired. Just leave us alone and let us do our job. Surprisingly, when that happens, the Jury system works just fine.

You want a short voir dire? Get an appointment to the Federal Bench.


4) THE RIGHT TO BEGIN AND END THE TRIAL AT A DECENT HOUR:
We see this with a lot of new Judges, especially in County Court. Trying to establish some sort of macho reputation, they work until 11 PM and then send the jury out at midnight to deliberate. 

What are you people thinking? 

Would you want the most important day of your life in the hands of someone who has been in the Justice Building since 8 AM? Do you really think jurors will make the "wise and legal decision" that the jury instructions tell you to tell jurors we are depending on them to make after they have been in the REGJB for 16 hours later? What is  so difficult about coming back the next day?

The first step to being a good judge is giving everyone, including jurors, the time necessary to perform their part in the machinery of justice. 

That’s a good start. We have cast our bread upon the waters. Lets see what readers contribute.


2018 Edition: THE TRIAL TAX
It's not really a bill of rights issue, but have you (as a judge) ever considered the terrible price on our justice system a "trial tax" exacts? "What's a trial tax?" you say quizzically. For that .00000000001% of judges who don't know that the rest of your colleagues routinely impose stiffer sentences on a defendant who proceeds to trial and loses, a trial tax saps the life out of the justice system. And just as insidious as the trial tax, is that "innocent" little you speech you all give defendants before the trial begins in which you "innocently" inquire as to whether the defendant knows that the current probation offer could become forty years in prison if they lose. As if you all are shocked! Shocked to learn that a defendant who is told by a judge that if they lose they "could" receive a 40 year prison sentence (although you earnestly assure them you have not in any way made up your mind since you don't know the facts of the case) actually has a coercive effect on the defendant's decision to proceed to trial. 
Really. Just stop the charade. You know the facts. And we all know what you are doing. And it stinks. You want to be a judge that subverts justice and threatens defendants? Go put on a robe in Broward. For the rest of you, totaling the maximum possible prison sentence does not a judge make. A five year old with a calculator could do that. 
Ok. Now we feel a little better after that rant. Of course, it rarely applies to us, as we rarely lose. 

15 comments:

Anonymous said...

Preach, brother/sister; preach!

Anonymous said...

‘... as we rarely lose ‘ is a trumpian thing to proclaim. I for one like the bravado but here, this means you do not try or have not tried many 1st chair death cases or major federal drug conspiracy cases. Let’s be real. Speaking of trump, this is the first time in my life that I have actually liked watching politics.if he pulls of de-nuking North Korea the Vegas odds will shift heavy in his favor. The far left would rather have war then peace against the reality of 4 more years of trump.

Anonymous said...

Do judges really not like late lawyers? Suggestions:

1. Stagger calendar times within REG with more variety. Not everyone has to arraign at 9:05

2. Start every DV calendar at 11, or at 8:30. At least once a week I am supposed to be in Lawson and REG at the same time.

3. Start every branch court at 1PM

4. Interrupt attorneys who have long and time-consuming issues and ask them to return in an hour, so that everyone in line with quick business can get elsewhere.

Rumpole said...

9:21 I could tell you about the life and first degree felony cases I have won and the resounding thumping I've been giving feds on some very complicated money laundering and fraud cases but then...I can't reveal the case numbers so why does it really matter?

Anonymous said...

The Q is like 2722-1-4 in the last 20 years as per his Qwebsite

Anonymous said...

Good list.

But if I could add one more - sometimes it’s very hard to convince a client to accept a good plea. And afterwards, they may have buyers remorse and come back to us to complain.

If you see a defendant getting an unusually good deal (PTI to serious felony, wh + prob to trafficking, etc) please make a show of letting the defendant know that his/her attorney did a great job.

Milt Hirsch does this. Joe Fernandez does too. Judges - this little ten second praise does wonders for us, it cements our legacies as good lawyers to our clients, and selfishly - it feels good to be recognized for getting a good result. It will also drastically reduce the chance of a rule 3.

Anonymous said...

9:21 - what is the 'far left'? Anyone in the Democratic party? Anyone who votes for a Democrat? The foreign policy establishment, or those members of it who live on the coasts? People in their sixties and seventies who protested the war in Vietnam or latin american adventurism? Gay people? Women? Immigrants? Ethnic and racial minority members?

There are many people who believe that Trump will not be able to de-nuclearize N. Korea. This is understandable, because none of his predecessors have done so, and he doesn't appear to have gifts or staff superior to theirs. There are many people who will not believe Trump's statements that he has secured denuclearization. This is also understandable, because it requires intensive ongoing penetrating verification by international agencies, like IAEA, who know how to do this, who are unlikely to gain the necessary access. Also, because Trump lies a lot. All the time. About matters both trivial and existential.

Are people harboring doubts like that before 2020 members of 'the far left'?

Anonymous said...

Stop having your JA say that you only do motions on Friday in a leep year and even though you're planing major cancer surgery on the next Friday (Feb 29), the judge makes no exceptions. Get someone to cover.

Next time you ask me for a campaign dontion, pick up the check on a Friday during a leep year and we only hand them out when you are on vacation and you must personally come get the fucking check.

So there!

BTW, most judges don't do this but, you know who does.

The Goat's Opinion said...

While I am in California and not subject to some of the particulars described in the above comment, to your post I say, "Amen!" I will never forget being on vacation in Hawaii and having to spent part of it carefully going through autopsy photos and assorted medical reports for a trial starting the day I got back. These things happen everywhere especially where the judge is afflicted by "robeitis."

Anonymous said...

To the liberals who have repeatedly argued on this blog that the Russia investigation *must* be fair because Mueller and many FBI agents are Republicans: your talking point has now been thoroughly discredited. Has your opinion on the matter changed? Maybe a little? Maybe political bias is a thing that actually exists?

Anonymous said...

No comment about the fbi, rumpole, Try to spin it. But , Imagine what they can do to the little guy when they don’t like them. Haters!!!!

Kissimmee Kid said...

"To the liberals who have repeatedly argued on this blog that the Russia investigation *must* be fair because Mueller and many FBI agents are Republicans: your talking point has now been thoroughly discredited. Has your opinion on the matter changed? Maybe a little? Maybe political bias is a thing that actually exists?"

YOU F'ING A$$HOLE! Here's how the Republican mind works. "The only people who can serve their country are Republicans. Only Republicans love America. If you are not a Republican you are not fit to serve in government. If you are a Democrat, you are "biased" against Republicans and America. If you are a Democrat you are biased. Of course, Republicans are not biased, so they can sit in judgement against Democrats. The only problem is when biased Democrats serve, so by eliminating the ability of Democrats to serve, we eliminate the problem of bias. F U!

Anonymous said...

FBI Employee No 1 to FBI Employee No 2: "You promised me this wouldnt happen. YOU PROMISED."

FBI Employee No 2, by the way, was the second in command of the Clinton server investigation who suggested Comey change the language from "gross negligence", which tracks the statute.

One can only laugh that the worst conspiracy theories floated by the Right about the existence of a politicized "Deep State" were, in fact, all true. This is the same FBI, by the way, that knew about the Parkland and Vegas shooters and did nothing.

Trump should disband the agency. What a bunch of hacks. They come off worse than the Miami Beach Police Department.

Anonymous said...

Kissimmee kid,

I'm not referring to all Democrats as a whole being incapable of serving fairly in the FBI in the trump investigation. I certainly never said they are biased against America!!!! Never. said. that. You did, so chill out with the histrionics.

But an anti-trump FBI agent in charge of the trump investigation who says "we'll stop" trump to another FBI employee on the team is downright frightening to me.

That's a nothingburger to you?

If he puts that in a text on a gov phone, who knows what he was capable of. Sheesh.

Anyways, I'll give you the last word if you care to respond. Keep the faith, maybe you'll get him in the end.

Anonymous said...

agree.. Jesus what a shit show. As a criminal lawyer who has made millions doing it, trumps not guilty!