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, AND THE POPE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Wednesday, May 29, 2019

SIT IN

Yale's Skull and Bones. The Trilateral Commission. The Free Masons. BPOE. 
The names of these secret societies are whispered, not spoken. Conspiracy theories abound. 
And now in Miami, the  doors to another secret society are being pried (slightly) open. 

Where else can you go to meet charter members of the Merrick Garland fan club? Where can you see Mr. Markus expound upon Madison's Federalist Papers 10 and 14 or hear earnest discussions about the committee notes to the federal sentencing guidelines? 
Wanna hear a debate about Judge Hirsch's use of Guy de Maupassant in a ruling on a motion in limine? 

There's only one place where all these wonderous things occur, and now it's open to you: John and Jane Q Public, Esq! We speak of course of the monthly meeting of the Miami Chapter of the FACDL (motto: Dues, dues, dues!). 


On Wed, May 29, 2019, 6:10 PM Michelle E <mestlund@estlundlaw.com> wrote:
Dear membership,

FACDL-Miami meetings are always open to our general membership, not just the Board of Directors. Below is the schedule of meetings and locations for the upcoming year.
If you have any issues to be raised at a meeting, please notify me a week in advance so I can include it in the agenda.


June 19, 2019 - Federal Public Defender's Office ("FPD"), 50 West Flagler Street, Suite 1700, Miami, Florida 33130
August 21, 2019- Law Office of Wahid Vizcaino, 2103 Coral Way Ste. 304Miami, FL 33145

September 18, 2019- FPD
October 16, 2019- Office of Wahid Vizcaino
November 20, 2019- FPD
December 18,2019- Office of Wahid Vizcaino (meeting may be replaced with state PDO lunch and toy drive) (special showing of Gideon's Trumpet, staring Henry Fonda)*
January 15, 2020- FPD
February 19, 2020- Office of Wahid Vizcaino
March 18, 2020- FPD
April 15, 2020- Office of Wahid Vizcaino
Because altruism is our middle name, and because we live to serve, here are some items we believe should be placed on the agenda: 

Item: The elevators in the REGJB stink;
Item: Lattes while waiting in line at the attorneys window on 9- why can't they have caramel to drizzle on top?
Item: Placing court files on line for downloading- can anything be done before the Jenna Bush/Chelsea Clinton administration in 2028?
Item: How soon until wifi/2g service in the REGJB?


* Not really, but it's a cool idea. 





Sunday, May 26, 2019

LOUIS JEPEWAY HAS PASSED AWAY

He enjoyed a good cigar. He enjoyed a good courtroom tussle. He practiced law in this community before many of us were born. He was loyal to his clients and devoted to achieving the best outcome for them. He was a bit of a raconteur when you got to know him. And he had, as Edith Georgi points out below, "a generous heart." 
Our friend and colleague Louis Jepeway passed away Sunday morning of a heart attack. 


Dear Friends and Colleagues,

It is with profound sadness that I share with you that we lost another hero today. Louis Jepeway died this morning of a heart attack. A person known for his generous heart, his fearless spirit in court, and his insatiable quest for knowledge, he will be missed by all who knew him.

Please share your thoughts and memories so that they can be delivered to his family and loved ones....

And perform acts of generosity in his name--that's what Louis did constantly, and usually anonymously.

Arrangements will be announced soon.

Sadly,

Edith

HELP WANTED INQUIRE WITHIN

Perhaps it's the long hours 10-2 work hours and low pay. Perhaps it's the chambers that resembled what a remodeled Greyhound Bus Assistant Manager's office looked like in 1979. Perhaps it's that the job no longer gets you freebies and or even a seat in the back dining room at Joes unless you're on the 3rd or the federal bench. Maybe it's the incessant sniping from obnoxious and anonymous  bloggers.

In any event, no one wants to be a circuit judge. There are three vacancies on the Miami-Dade circuit bench and the JNC (motto: "read Ayn Rand and join the federalist society before you even THINK of applying")  for THE SECOND TIME has extended the deadline for applicants. 

FROM THE JNC PRESS RELEASE:    

MIAMI – In order to broaden the applicant pool, the Eleventh Circuit Judicial Nominating
Commission hereby extends the application period for applications to fill the vacancies created
by the elevation of Judges Monica Gordo and Rodolfo Ruiz, and the resignation of Judge Maria
Sampedro-Iglesia. The Commission requests that interested candidates submit an application for
consideration. Applicants must meet the qualifications for circuit court judges described in
Article V, Section 8 of the Florida Constitution. Applicants must submit three copies (3) of their
application by 5:00 pm on Friday, May 31, 20191 as follows:
(1): The original unredacted paper application shall be delivered to:
Breckenridge Dewey

Dewey Cheetum & Howe
200 S. Biscayne Blvd. 39th Floor
Miami, FL 33131-2399
S

The only people who are applying are county judges who resemble Horshack from Welcome Back Kotter: 





Our take (which is what you tune in for) is that we have a Governor driven by ideology- but it's an ideology neither he nor his legal counsel understand. They want members of the Federalist Society to be judges. But what they do not understand is that the real principles of the federalist society (not what is discussed in the local Miami chapter where they sit around and say that if they were a judge they would just call balls and strikes and would not legislate from the bench) are based on an understanding of the epistemology of the political philosophy of laissez faire capitalism. 

They think a conservative judge defers to a legislature that enacts laws based on conservative Christianity. They don't understand that the founders of the federalist society embraced the philosophical principles against altruist-collectivism- something that is embraced full bore by Trump and his "Trump-Judges" - a more miserable group of collectivists we have rarely seen. 

So maybe potential candidates are disheartened about being forced to abandon their principles. Maybe possible judicial candidates just find it abhorrent to be told how to be a judge and a lawyer by the governor's legal minions who have never tried a case. 

Maybe it's just us.  "Avoid doing something that gets you on the blog" is something we have heard all new judges are advised to embrace. (Why doesn't Judge Soto like us? 😟  ).

In any event.... the Governor has hung out the help wanted sign. 
Run. 

Thursday, May 23, 2019

MEMORIAL DAY 2019

Summer is fast upon as. Florida's short spring gets shorter all the time- not that there's any evidence of global warming.  Soon it will be the Fourth Of July, and then the All-star game; pre-season football; the dog-days of August, and then the fall...the blessed fall when temperatures dip a degree or two in Miami. 

For now we repair to our lair high in the Sierra Nevada Mountains. 

Query: Are you staying in Miami or starting a summer vacation? 

Talbot "Sandy" D'Alemberte passed away this week at the age of 85. The accolades that have been written- that he was a giant in Florida's legal community and that he was one of the last true southern gentlemen-lawyers, are all true, and yet the kind words do not scratch the surface of Sandy D'Alemberte's life. Suffice to say that Sandy D'Alemberte was of a different time- a time when being a lawyer was an honorable profession and the law was a calling for people who wanted to change the world for the better. Sandy D'Alemberte was a lawyer's lawyer. He was one of the outstanding Floridian's of the last century. He was a man who made a difference and he will be missed. 




Tuesday, May 21, 2019

WHO'S THE FAIREST OF THEM ALL

Mirror Mirror on the wall...

If you are observant and have been snooping around the courthouses the last few days then you've noticed something different. Things are quiet. Going smoothly.  Why? 

The Judges of the State of Florida are in town for ….Supreme Court mandated.... 

Gimme a D....D....

DIVERSITY TRAINING! 

Yes the D word. Diversity. Judges have to have training within three years of becoming special human beings.  But wait you ask- "If a lawyer becomes a judge, aren't they already fair and sensitive to diversity issues?" 

Surely you jest. 

What occurred at the D training? We don't know. We couldn't get a judge to talk to us on the record. Actually, we couldn't get a judge to talk to us off the record. A few loose-lipped bailiffs and JAs spilled the beans when we asked where everyone was. 

Here's how we envision a lecture...

Biodiversity refers to the variety and variability of life on Earth. Biodiversity is typically a measure of variation at the genetic, species, and ecosystem level. Terrestrial biodiversity is usually greater near the equator, which is the result of the warm climate and high primary productivity. 

Oh wait. This is about race and gender....



This is George Stinney. On June 14, 1944 he was executed by electrocution after he was wrongfully convicted of the murder of two white girls. 
The trial lasted one day- including jury selection. 
The jury deliberated ten minutes. 
There was no transcript of the trial. 
There was no appeal. 
George Stinney was executed 83 days after he was convicted. 
When he was executed he was five feet tall and weighed 90 pounds. He was too small for the electric chair so he was made to sit on a bible in the chair. Good Christians they who executed the fourteen year old boy. 

Mirror mirror on the wall, who's the fairest of them all? 
Not the American Justice system, often touted as the best in the world. 

You want to talk about race and diversity in the criminal justice system? 
Tell it to George Stinney. 




Monday, May 20, 2019

FED CONFUSION

You can't tell the players without a scorecard. 
You can't order without a menu. 
And it's hard to figure out which Magistrate is doing what and  when, when  you go on the SDFLA website and- after much searching- find the duty roster:



First of all when you go on to the Southern District Web site (Motto "We know who you are") there are nine tabs.  Choices. Choices. Choices. Which tab is more likely to yield the duty assignments: "Court Info"; "Attorney Info"; "Judges Info?"? 
Judge's info is the correct choice, but not an intuitive one. 
Once there and you click, you get the above. 

Matthewman? We'll take him...but although it doesn't say it, he's 70 miles away in asbestos-ville  West Palm Beach. 

Reid...Maynard...Valle...they're all on duty. Who's holding court at 10 and 2? And BTW where is their courtroom? No info on this tab. To find that, it's another click-fest. 

Give the feds their due- their electronic filing system is 100X better than the State of Florida's system. 

But figuring out where to go?  It's like trying to find WMD's in Iraq circa 2001-2007. You know they're there, somewhere...but where? 

With apologies to our favourite federal blogger as this is his milieu, but he's not anonymous and we are, and he can't piss off the powers that be, and doing that is our milk and honey. 

Memorial Day coming up. Otherwise known as Trump Pardons his favourite war-criminals day. 

Saturday, May 18, 2019

SPY VS SPY

Well this is a new one on us. US Navy prosecutors in the court martial of Navy Seal Edward Gallagher have attempted to spy on the defense by sending defense counsel an email with spying software imbedded in the email.  Navy prosecutors did this with the consent of the Judge assigned to the case. 

Count us as aghast. 
But maybe not surprised. 


From the NY Times :

The court-martial of a highly decorated Navy SEAL platoon leader on war crimes charges has been thrown into turmoil by, of all things, a harmless-looking image of a bald eagle perched on the scales of justice.
The bit of digital artwork, embedded in an email message, contained hidden software that could track if anyone read or forwarded the email, and may have also been able to allow access to all communications and files on the recipients’ computers, defense lawyers argue in court filings.
The email was sent last week to defense lawyers representing Special Operations Chief Edward Gallagher by the lead Navy prosecutor in the murder case against the chief, apparently with the judge’s approval. The tracking software was also included in emails sent to lawyers for the chief’s commanding officer — Lt. Jacob Portier, who is charged in a related case — and to a journalist for Navy Times covering both cases.
Maybe the Navy should have consulted with the  US Attorney's Office for the Southern District of Florida.  They have been known to spy on the defense (or at least clumsily try) in at least two recent cases. In one case the feds sent a snitch to Mr. Markus who solicited the defense to commit crimes (which they naturally refused to do) and in a second case the feds flipped a co-defendant who had signed a joint-defense agreement and then debriefed the defendant about what was said at the joint-defense meetings. 
Coming next: vengeful prosecutors bug the jury room to determine  which jurors are violating their oath by presuming the defendant innocent. 



Wednesday, May 15, 2019

HARVARD CAVES IN

UPDATE: David's federal blog has an excerpt from Roy Black's commencement address to U of M law school. It's worth a read here and fits within the context of this post. 

The motto of FACDL (other than the "dues! dues! dues!) is "Liberty's Last Champion."
Defense attorneys defend the defenseless. 

Our tradition is rooted in John Adams, who as a young attorney in Boston defended a group of British soldiers charged in the Boston Massacre with killing Boston citizens. Adams defense of the British soldiers was brilliant and it placed Adams' future (including his plans to run for office) in jeopardy. And yet, in the face of public condemnation and personal ruin, Adams vigorously defended his clients, winning most of the cases and setting the tradition for criminal defense lawyers in the United States.  There is a John Adams award given annually to a criminal defense attorney who defends a client-usually a high-publicity case where the client engenders little sympathy. 

Enter Harvard Law School dean Ronald Sullivan,  who several months ago undertook the  defense of the unpopular Harvey Weinstein. To say Weinstein has become a pariah in this country is an understatement. Weinstein has the wrong charges (sexual assault) the wrong accusations (using a position of power over women to sexually assault them) at the wrong time (#metoo). 

It's a case that cries out for Rumpole. 
But Weinstein did not hire your favourite blogger. Instead  Weinstein settled for Harvard Law School Dean Ronald Sullivan, who we grudingly admit, was not a bad second choice. 
Except the students at Harvard erupted. "How could defend such a person?" was the question repeatedly asked among the spoiled denizens of Harvard Square. Protests ensued. Students didn't want a Law School dean who would stoop to represent such a despicable character as Harvey Weinstein. 
Yesterday Harvard caved, removing Ronald Sullivan as a dean of the law school in response to the criticism of his defense of Weinstein. 

Let us repeat that slowly- Ronald Sullivan was removed as a dean of the law school because the people at Harvard did not approve of his client. 

The spoiled Harvard brats, who know nothing, live in an Ivory Tower, and pay lip service to a constitutional system of justice where everyone is entitled to a defense and they are presumed innocent until proven guilty...unless they are charged with using a position of power to assault and abuse women. Then the students cup their hands over their open mouths in horror: "How could you defend such a person?"

So here is the system of justice according to Harvard- everyone is entitled to the presumption of innocence and counsel of their choice so long as the students of Har vahard, using their Brahmin sense of right and wrong, agree. 

Put another way, the people at Harvard make us sick.  They have no idea about the real world and their sense of outrage has no place at a law school. If they find  Harvey Weinstein and allegations against him repulsive, then they need to find another area of study. Go to med school. Engineering school. Architeture- go design battered women shelters and provide beds for abused children and their mothers. It's the lord's work and a very worthy cause.  But when it comes to criminal defense, stay out of our work. Leave it to the professionals. You don't want people who are accused of crimes you find offensive to be presumed innocent and have the right to the counsel of their choice. 

So be it.
Go jump in the Charles River and clean it and make yourself feel good about being a doo-gooder. 
Idiots.  (Sorry DOM,  no offense intended). 

Monday, May 13, 2019

JUST FOR THE RECORD

How about a hand for El Capitan? A good and informative post last week, providing necessary information for the modern criminal practitioner.  

We are thinking of cancelling the Captain's blog status. 

On to legal and non-legal lexicography.

Here are some words and phrases that we can either do without, or which aren't being used enough. 

10. Allocution. In many jurisdictions, the defendant allocates. It is a formal statement a defendant makes in which s/he accepts responsibility and offers mitigation before sentencing. In over thirty years, we have never heard the term used in any federal or state court in Florida. 

9.  BFF.  What does this mean? 

8. Meme. See #9. 

7.  Guidelines (state court). What a misleading term this has turned into. Under the original guidelines a crime was given a low end and a high end. Courts had discretion to go lower or higher. Then some yahoo legislator heard about a judge giving someone a day less than the guidelines required, and the law was amended and amended and amended until "guidelines" became a code word for "maximum sentence." Guidelines supersede statutory maximums. Guidelines remove judicial discretion. Guidelines, like the orders from generals in totalitarian states "must be obeyed" regardless of the human consequences. 
Here's an idea: let's enact the "truth in justice" act and require terms to mean what they say. "Guidelines" would be changed to "absolute maximum sentence to be given in all cases with removal from office of any judicial officer who does otherwise." In Florida's Orwellian justice-system-speak we can call this the "Fair-Sentence-Calculation." 
Judge: "Ms. Prosecutor, what's the Fair-Sentence-Calculation?"
ASA: Judge, the FSC for a first time attempted burglary of a tricycle is ….hmmm....add the tire enhancement, wheel enhancement, quality of life enhancement, bell on handlebars enhancement, minus one day for first offense under the First Offenders Prison Reduction Act (FOPRA- "all first offenders shall have their sentence reduced by one day in recognition that this is their first offense") ....it's seventeen years, seven months, 29 days  judge. But this offer is open only at arraignment. Under Florida's "Don't Waste My Time Act" defendants who are guilty and do not accept a reasonable offer at arraignment are subject to a multiplier for every thing they do to delay the case, like taking depos or filing motions. For a third degree felony there is a  .21 multiplier for taking depositions and a .45 multiplier for filing frivolous motions like motions to suppress or dismiss."

6. Craft Beer. Please. Spare us. Pop the tab on a cold Bud and STFU. 

5. What, pray tell, is a "Kardashian" and why does/do they/it/whatever matter so much? 

4. A "continuance"  in Miami, is an adjournment in New York. Pre-trial diversion in NYC is an "ACD" (adjourned in contemplation of dismissal). Everyone in Miami is from New York. Everyone in NYC wants to move to Miami. Why can't we all get along and learn to speak the same language? 

3.  Constitutional Crisis.  The last time a Constitutional Crisis was in vogue was the Saturday Night Massacre when President Nixon couldn't find anyone at the DOJ to fire special prosecutor Archibald Cox until solicitor general Robert Bork Bork'd Cox. Now all the cable new outlets are babbling about a constitutional crisis. We don't have a constitutional crisis. The Constitution is working just fine. We have a Presidential Crisis. A narcissistic idiot is president and the office is in crisis. If it walks like a duck; and quacks like a duck; and it's not a platypus, then it's a presidential crisis. 

2. Dude.  From the 1870's to the 1950's "Dude" denoted a well coiffured dandy. It was also a word western "country folk" used to identify a conspicuous "city slicker"  visiting rural America.  
When did a word used primarily in Montana and Oklahoma become a popular and accepted form of address? We have heard lawyers "dude" each other in the hallways. We have heard witnesses describe the "dude that robbed the store". 
Dude, Stop using Dude. We formally will honor with recognition and favor any Judge who prohibits the use of the term "Dude" in their court. 

1. "Just for the record"   How many times in any given court proceeding do you hear a lawyer say "just for the record judge." 
The term is meaningless. As one of our favourite Judges, The Honorable Federico Moreno has been given to say in the past, "everything is for the record". Everything said in open court is on the record. Saying something is for the record, while you are on the record, is meaningless and redundant.  It's a waste of time. It's legal pomposity, uttered by hapless litigators who just want to hear themselves speak for no other reason than hearing themselves speak. 

So stop it. For the record, we are demanding that lawyers stop saying "for the record" while in court, on the record. 


Thursday, May 09, 2019

CALEB CENTER AND COURTHOUSE OPEN

On February 6, 1972 Joseph Caleb,  34, a lawyer and head of the International Union of North American Laborers was found behind his apartment building dead, his body riddled with half a dozen gunshot wounds. The NY Times article reporting the murder is here. 
The Union that Mr. Caleb headed was the second largest Union local in the US and its membership was 85% black. 

Joseph Caleb headed the Union local from 1963 until his murder. During the turbulent times of the 1960's black laborers were-not surprisingly- paid significantly less than their white counterparts. Raised by his grandparents who were Alabama share-croppers- Caleb fought for the right to equal pay for his Union members. During his leadership, according to this Miami Herald Article written by Mr. Calen's son in 2014, pay for black workers in the union rose from $1.15/hour to $5.30/hour plus benefits. 

As Mr. Caleb's son also writes, his father was more than a union leader. He was a civil rights activist, a philanthropist who supported more than 16 charities, the chairman of the Model City Program - a President Johnson era program to bring a community center to Miami- the one that is now named for Mr. Caleb. Mr. Caleb brought the free-school-lunch program for inner city youth to Miami, and a youth summer job program as well. 

The Caleb Center is located at 5400 NW 22nd Avenue. The Judges assigned to the re-opening of the Courthouse are Gordon Murray (civil) and Jacqueline Woodward (criminal). 

Many of us went to law school to make the world a better place. Few of us actually do so. Joseph Caleb did and the courthouse and community center are a fitting tribute to the man and his life. 

Tuesday, May 07, 2019

FLORIDA LEGISLATURE - 2019 - CRIMINAL JUSTICE REFORM


THE CAPTAIN REPORTS:

SINE DIE ......

And with that, the Florida Legislature wraps up another session in Tallahassee. According to the Tampa Bay Times, the Legislature passed a 296-page criminal justice reform package bill last Friday, the last full day of the session.

There were many legislators that were less than satisfied with the final product. In last minute behind the doors meetings, several big-ticket reform pieces were taken out of the bill at the behest of the House.

Some of the highlights of changes in the law that are contained in House Bill 7125 include:

+ Making it easier for felons to get professional licenses

+ Allowing state attorneys to decide whether juvenile cases should be transferred to adult court. (Currently, that happens automatically if the crime is severe or the child has certain priors convictions).

+ Raising the "threshold" dollar amount at which theft charges go from a misdemeanor to a felony, from $300 to $750.

+ Eliminating or reducing driver’s license suspensions as a criminal penalty.

+ Creates a task force to reevaluate Florida’s entire criminal punishment code, and whether the set punishments fit the crime.

What didn’t make the cut in the final bill:

• Allowing judges discretion over sentences for certain drug crimes that currently have required amounts of time that defendants must serve, called "mandatory minimum" sentences.

• Permitting prison inmates convicted of nonviolent felonies to be released after serving a minimum 65 percent of their sentence if they have good behavior and participate in educational and rehabilitative programs (current law is 85 percent).

• Retroactive re-sentencing for people who were convicted of aggravated assault back when the state’s punishment for that crime was harsher than it is now.

Interesting side note: "As part of the analysis conducted to evaluate the impact of the original bill, state analysts crunched the numbers as to what would happen if inmates were allowed to be released earlier. The answer was eye-popping: By 2024, $860 million would be saved and about 9,000 additional prisoners would be released."

HERE IS A HIGHLIGHT OF JUST SOME OF THE CHANGES:

322.055, F.S.; reducing the length of driver license revocation for possession or sale of, trafficking in, or conspiracy to possess, sell, or traffic in a controlled substance; deleting provisions authorizing a driver to petition the Department of Highway Safety and Motor Vehicles for restoration of his or her driving privilege;

322.056, F.S.; reducing the period for revocation or suspension of, or delay of eligibility for, driver licenses or driving privileges for certain persons found guilty of certain drug offenses; deleting requirements relating to the revocation or suspension of, or delay of eligibility for, driver licenses or driving privileges for certain persons found guilty of certain alcohol or tobacco offenses; deleting provisions authorizing a driver to petition the Department of Highway Safety and Motor Vehicles for restoration of his or her driving privilege;

322.057, F.S., repealed; relating to discretionary revocation or suspension of a driver license for certain persons who provide alcohol to persons under a specified age

322.75, F.S.; creating a new statute; requiring each clerk of court to establish a Driver License Reinstatement Days program for reinstating suspended driver licenses in certain circumstances; providing duties of the clerks of the circuit courts and the Department of Highway Safety and Motor Vehicles; authorizing such clerks to compromise on or waive certain fees and costs; providing eligibility requirements;

562.111, F.S.; removing the mandatory driver license suspension requirement for conviction of possession of alcohol by a person younger than 21 years of age;

784.046, F.S.; amending; prohibiting attorney fees in cases seeking an injunction for protection against repeat, dating, or sexual violence;

784.048, F.S.; amending; revising the definition of the term "cyberstalk"; providing criminal penalties;

784.0485, F.S.; amending ;prohibiting attorney fees in cases seeking an injunction for protection against stalking;

812.014, F.S.; increasing threshold amounts for certain theft offenses; adding utility services to the list of items the theft of which constitutes a felony of the third degree;

943.0578, F.S.; creating a new statute; establishing eligibility criteria for expunction of a criminal history record by a person found to have acted in lawful self-defense; requiring the Department of Law Enforcement to issue a certificate of eligibility for expunction if specified criteria are fulfilled; specifying requirements for a petition to expunge; creating a penalty for providing false information on such petition; requiring the department to adopt rules relating to a certificate of expunction for lawful self-defense; 

943.0581, F.S.; clarifying administrative expunction applies to criminal history records resulting from an arrest made contrary to law or by mistake;

943.0584, F.S.; creating a new statute providing a definition; specifying criminal history records which are ineligible for court-ordered expunction or court-ordered sealing;

943.0585, F.S.; amending; providing eligibility criteria for court-ordered expunction of a criminal history record; requiring the Department of Law Enforcement to issue a certificate of eligibility to petitioners meeting eligibility criteria; specifying requirements for a petition for court-ordered expunction; specifying a court's authority to expunge criminal history records; specifying the process for a petition to expunge a criminal history record;

943.059, F.S.; amending; providing eligibility criteria for court-ordered sealing of a criminal history record;

943.0595, F.S.; creating a new statute requiring the Department of Law Enforcement to adopt rules to implement administrative sealing of specified criminal history records;

948.001, F.S.; revising the definition of administrative probation; authorizing a court to order an offender into administrative probation;

948.04, F.S.; amending; requiring a court to early terminate a term of probation or convert the term to administrative probation under certain circumstances;

948.06, F.S.; amending; requiring a court to modify or continue a probationary term under certain circumstances; requiring each judicial circuit to establish an alternative sanctioning program; defining low- and moderate-risk level technical violations of probation; establishing permissible sanctions for low- and moderate-risk violations of probation under the program; establishing eligibility criteria;

958.04, F.S.; revising the criteria authorizing a court to sentence as a youthful offender a person who is found guilty of, or who pled nolo contendere or guilty to, committing a felony before the person turned 21 years of age;

Looks like a good time for FACDL to sponsor a seminar covering all of the new laws that concern the criminal justice system.

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

Monday, May 06, 2019

GAME OF THRONES

For those of you Game of Thrones Nerds (not mentioning anyone in particular, like authors of federal blogs for example) the full name of Danerys is as follows

Queen Daenerys Stormborn of the House Targaryen, the First of Her Name, Queen of the Andals, the Rhoynar and the First Men, Lady of the Seven Kingdoms and Protector of the Realm, Lady of Dragonstone, Queen of Meereen, Khaleesi of the Great Grass Sea, the Unburnt, Breaker of Chains and Mother of Dragons.

And now add, after Sunday night's episode in which a Starbucks Coffee cup is visible....


Queen Daenerys Stormborn...Breaker of Chains and Mother of Dragons. ....drinker of Pumpkin Spice Lattes...

As you read this, there are countless millennial prosecutors and PDS, and some GenX Judges wondering about the fuss: "Wasn't Starbucks always available?" 
Nope. Not in Winterfell or the Iron Islands. (Duh). 

FACDL BANQUET 
As we quietly sipped a nightcap in NYC after the opera, the FACDL Banquet wound down and by all accounts it was a great success. Drinks were drank...food was eaten...awards were presented...backs were slapped...courage was renewed...vows were made to fight the powers that be... and "winter is coming" was heard early and often...it was Rumpolian in all aspects but for the absence of your favourite, award-winning blogger. 





Thursday, May 02, 2019

LAW DAY AND MORE

Monday May 1, was Law Day.  Judge Hirsch celebrated by a short constitutonal calendar which follows: 

The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders.
   – Benjamin Cardozo, The Nature of the Judicial Process
The following is cause for concern. 
The federal "justice" system has become a maw. A gulag swallowing defendants and digesting them through the bureau of prisons. Prosecutors grease the wheels, and  nameless, faceless gray bureaucrats skulk the hallways,  processing the defendants as grist for the mill. 
What we all have suspected, we now have evidence is true- the feds only give lip service to the constitution's guarantee that every defendant is presumed innocent.  And thus, one day recently as we passed by the office of federal probation and supervised release, we saw this message on a videoscreen:


We stopped in our tracks, and happened upon one of those aforementioned hapless bureaucrats:
Rumpole: "What are the rules for travel for pre-trial convictions?"
HB:  "Huh? (We point to the slide). Oh, defendants must receive permission from the court before traveling outside of the district."
Rumpole: "And this applies to people convicted pre-trial?"
HB: "Sure does"
Rumpole: "And what about defendants not convicted pre-trial?"
HB: "Huh? Hmmmm....never thought...huh...I dunno...wait! I can ask my supervisor..."
Rumpole: "Never mind. Thank you."

FACDL BANQUET THIS SATURDAY NIGHT 
It's that time of year when dues paying members of the FACDL get together and share mead and meat with members of the judiciary and everyone tells everyone what an important part of the justice process they are. 
And awards are bestowed. Here are this years winners:


The Honorable Gerald Kogan Judicial Distinction Award:
     Hon. Judge Nushin Sayfie 
The Daniel S. Pearson – Harry W. Prebish Founders Award:
               Gene Zenobi
The Rodney Thaxton “Against All Odds” Award:
      Team of   U.S. v. Estaban Santiago Ruiz case: Hector Dopico, Eric Cohen, Sowmya Bharathi, and Ayana Harris                                           
The Gregg Wenzel Young Lawyer’s Award:
            Kristen Kawass

We know the first two honorees and the awards are well deserved. Judge Sayfie has served with distinction in the criminal division, and Gene Zenobi, after a long and successful career as a criminal defense attorney took over the reins of a dispirited Regional Counsel Office and by all accounts turned it into a first class office providing indigent defendants with topflight legal talent. 

We don't know about the Santiago-Ruiz case or Ms. Kawass, but we congratulate them on receiving distinguished awards. Is there any better award for a criminal defense attorney than one named "Against All Odds"? Esepcially an award given in the name of the great Rodney Thaxton. And we hope there is a decent explanation for the hero that Greg Wenzel is to our country, and why it is an honor for any lawyer to receive an award in his hallowed name. 

Rumpole will continue a Cal Ripken-like streak and not attend the festivities, in lieu of which we will be attending Gotterdammerung at the Met saturday night in NYC, followed perhaps by a night-cap at Bemelman's bar. Tommy Rowles (RIP) who made the best Old Fashioned is no longer serving regulars, but it's still one of our favourite haunts in Gotham. 

Wednesday, May 01, 2019

JUDGE SCOLA RECUSAL- A DECISION FOR THE AGES

Judge Scola is a great judge. But that merely scratches the surface of the man.
The following order of recusal places Judge Scola in the pantheon of great federal judges like his former colleague Judge Gleeson of the EDNY. 
However, more significantly, Judge Scola is a man who when he sees a wrong does not refrain from speaking out. As John Kennedy said in a speech in which he quoted Edmund Burke: "The only thing necessary for the triumph of evil is for good men to do nothing."

Judge Scola is a great man. And he did something. He didn't remain silent in the face of the "immoral and barbaric" actions of an insurance company. 

Well done Judge Scola. Well done indeed.