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

Sunday, May 31, 2020

MIAMI IS IN CHAOS AND THE QUESTION IS....

The Americans: There are times when all that is needed to settle us is a quick review of Gordon Sinclair and his classic: The Americans (A Canadian's Opinion). Do yourself a favor and watch it. 
This was a June, 1973 editorial that Mr. Sinclair, a well known Canadian commentator of the day wrote. It was set to music and he recorded it and it received a lot of air play in its time. In many ways, it is still relevant today. There is a measure of pride in hearing our country praised for a century of help to other countries of the world. We are a good people. We do put our scandals on our front pages for the world to see. From our pain and suffering will come growth and renewed spirit and strength. We returned to space this weekend- it was a private American company, displaying the entrepreneurial spirit that makes our country great that did it. God Bless America. 


UPDATE # 3 : Sunday 10:30 PM. Things are quiet in Miami. Violent protests continue in other cities such as NYC. 

UPDATE#2: In a direct threat to the livelihood of FACDL members, the Miami protestors have  marched to  FDC where they are chanting "shut it down!" Personally, we prefer the "no justice-no peace chant." We have plans to dine again at 11 Madison Park, and for that we need clients. 

UPDATE: SUNDAY 4:30 pm: a large group of protestors are in downtown Miami marching towards the City of Miami Police Department (Motto: "How many cops does it take to throw a protestor down a flight of stairs? None. He fell..." ). There is a sundown curfew in the City. 

FACDL has a volunteer hotline: 786-759-0992- where protestors who need legal representation can call and be put in touch with an attorney who will represent them for free.  (We didn't read this on the listserv- that would be a violation of SALTII. We received emails from members about it).


Where is the State Attorney? 

Yesterday, as peaceful protests in Miami turned violent, Ace Miami Herald Reporter David Ovalle was at ground zero and tweeted that "Miami is in Chaos" as the protests turned violent. 



Melba Pearson, running for State Attorney tweeted this: "If you are in #MIAMIPROTEST and arrested for NON VIOLENT actions, DM me and I'll connect you with attys to represent you Pro Bono. If you are law enforcement I strongly encourage the use of civil citations instead of arrests as we are in Covid-19 crisis." 

In Coral Gables, Police Officer knelt with protestors and prayed. 

And our State Attorney? This was her last message on social media: "Ditto. Felicidades"- which was three days ago when she retweeted someone else wishing Senator Marco Rubio (R, Bewildered) happy birthday.



Does she know Miami, like in 1980 (McDuffie), 1982 (Police shooting in video arcade in Overtown)  and 1989 (Officer Lozano acquittal) is burning again?  Maybe not. This is how we imagine (satire- protected speech, can't be prosecuted, no minimum mandatories apply) a meeting between her and her Chief Honcho Don Horn:

KR: I got an email from a victim. Some law furniture was stolen and we placed the offender on probation and they wanted five years prison.
DH: I check on it and chastise the prosecutor. 
KR: Other problems?
DH: Well, have you seen that on the streets...
KR: Hang on. There was that manslaughter case we lost on self defense. Why didn't they death qualify the jury?
DH: It wasn't first degree murder. We cannot seek the death penalty for  crimes other than first degree murder.
KR: Well that should be brought up in Tallahassee next month. What about minimum mandatories?  Are they up? Remember our Motto: "A minimum mandatory a day makes the State Attorney Say: "I am happy and that is the way to prosecute crimes every day'." Are we saying that every day in assembly?
DH: We don't have assembly. There is this problem with the streets...
KR: We should have assembly. I thought the assembly task force recommended assembly. Can I see that report?
DH: Yes but there is rioting because of Minnesota and...
KR: It was Marco Rubio's birthday last week. Did he get my box? I ordered that fruit box where they make decorations with fruit. Can we tweet a picture of that out please? Oh look at the time, I have the Victim's task force meeting, then the police officers as victims task force meeting, then the judges need to listen more to victims task force meeting with judges, and finally the victims rally task force meeting where we are discussing the link between increased prison sentences for first time marijuana possession and a decrease in property crime. Gotta run....

In May and June 1980, after the acquittal of four Miami Police Officers who killed Arthur McDuffie, we walked into the Justice Building (as it was called at the time) as armed national guard troops stood outside. Miami Burned (see the amazing post with Roy Black and Abe Laeser here).  If you do nothing else today, read that post written mostly by Messrs. Laeser and Black. 

Three people were killed in a riot outside of the Justice Building after the verdict. The next day twelve more people died in rioting in Liberty City and Overtown. Police did not enter the area because of snipper fire. But we had a State Attorney-Janet Reno-  and Civic Leaders who acted. They went into the community and talked to people. 
A significant number of businesses were looted in Overtown and Liberty City and never returned. Old time Justice Building denizens will remember that "Wally the Bailiff" (Wally Leahy, who has since passed away) owned a butcher shop in downtown Miami that was looted and burned. He never reopened the business. His story was one of many at that time. 

Now we are in a time of crisis that is expanding. As the virus crisis started the State Attorney tweeted that her office would be open for  "business as usual". There were disturbing reports early on that staff workers were told they would have to use vacation and sick leave if they did not come into work. That of course changed when events overtook the nearsightedness of both the State Attorney and the Judicial administration (and the President) and the virus showed that it did not care what people did. It was going to kill indiscriminately, and it did. 

The riots across the United States are ostensibly because of the murder of George Lloyd. But if you think the economic pain, frustration and fear caused by this virus is not also fueling the social unrest, then you are clueless: business as usual. 

It would be nice to see the State Attorney lead. To have her appear at bond hearings and authorize the release of peaceful protestors and seek full prosecution of agent provocateurs - looters taking advantage of the protests.  

It would be nice to have a State Attorney who could lead and not follow. 

Saturday, May 30, 2020

WHEN THE LOOTING STARTS THE SHOOTING STARTS

UPDATE: BASED ON UNREST THERE IS A 10PM-6 AM CURFEW FOR MIAMI DADE COUNTY
As if you do not have enough reasons to stay home, there is now a curfew. Stay safe.

Dateline Miami: 1967: Miami Police Chief Walter Headley said today "When the looting starts, the shooting starts." Headley was talking in response to unrest in Miami's Negro* communities: "We don't mind being accused of police brutality. While most negroes are law abiding, about ten percent are young hoodlums who have taken advantage of the civil rights movement" the Miami Police Chief said, before predicting a quiet and peaceful time when the 1968 Republican  National Convention comes to Miami Beach next year. 


Dateline: October 24, 1968,  Madison Square Garden, New York City:  Alabama Governor George Wallace, who is running for President as the America Independent Party nominee against Richard Nixon (Republican, crook) and Hubert Horatio Humphrey nee Hornblower* (Democrat)  said to a packed Madison Square Garden of  supporters  that he was disgusted at President Johnson's response to demonstrators who blocked the Presidential Limousine: "I tell you when November comes, the first time they down in front of my limousine, it'll be the last one they ever lay down in front of; their day is over." 
As the crowd responded, Wallace took off his jacket and clenched his fist, shouting "We don't have riots in Alabama. They start a riot down there, first one of em to pick up a brick gets a bullet in the brain, that's all. And then you walk over to the next one and say 'all right, pick up a brick. We just want to see you pick up one of them bricks now." 
The crowd erupted in enthusiasm. *

Dateline The White House, Washington DC, May 29, 2020: President Trump, responding to the protests in St. Paul Minnesota the night before, which saw a police station burned and looted tweeted "When the looting starts, the shooting starts."  Considering that one of Rumpole's rules is to never believe in coincidences, and considering that the current president has zero understanding or recollection of history, someone fed the president that racist line to tweet. 

Dateline The White House, Washington DC, May 29, 2020: A violent crowd of protestors overwhelmed uniformed secret service officers and national park police officers this evening, pulling away crowd barriers and taunting police officers. 

Dateline St. Paul, Minnesota, May 29, 2020: Ignoring an 8PM curfew imposed by the governor, protestors roamed the streets of St. Paul, Minnesota near the third precinct police station this evening, with no police or national guard troops on the street, the protestors looted the burned police station, as well as burning other nearby businesses. The protestors also attacked the nearby fifth precinct police station. 

Throughout the United States on the evening of May 29, 2020, protestors erupted in violence. The Barclays's Center in Brooklyn New York was the scene of violent protests. The CNN Center in Atlanta was attacked and damaged, and police and protestors squared off in various parts of Los Angeles. In one televised incident, officers stood by as protestors wrote the word "Killers" on police vehicles. 

When the looting starts, the shooting starts, and the looting gets worse. 

"Hate begets hate. Violence begets violence. Toughness begets greater toughness. We must meet the forces of hate with the power of love. Our aim must never be to defeat or humiliate the white man, but to win his friendship and understanding." 

Dr. Martin Luther King,  (1958). 

* We are using the vernacular of the 1960's, when African-Americans were referred to as Negroes. 

* Perhaps it is time Mr. Moss and Rumpole had it out over George Wallace. We have thrown down the gauntlet. He knows where to find us (hint-send an email). 


* See President James Earl Carter's nomination acceptance speech, New York Democratic National Convention, August 14, 1980 when the President, referring to Minesotta senator and 1968 Democratic Presidential Nominee Hubert Humphrey instead called him "Hubert Horatio Hornblower"  a mistaken reference to the great fictional character of C. S. Forester. We highly recommend re-reading the Hornblower novels in  this time of home sheltering. Start with Midshipmen Hornblower, and go from there. 

Friday, May 29, 2020

COVID UPDATE AND ZOOM ISSUES

If you practice federal law and you are not getting Henry Bell's Corona Tonight email updates, you are missing a super-quality email updated with memos, motions, and orders from around the county. 
And we should recognize the work he is doing in keeping lawyers in this district on the cutting edge of Compassionate Release and virus related litigation. Well done Mr. Bell. Well done indeed. 


The hallmark of this blog is our willingness to take a stand, make a prediction, and make it in a public forum. Our astounding success rate in picking NFL games lo this past decade and more is evidence of the prognostication powers of this blog's author. 

There will be no Covid-19 successful vaccine in 2020. There probably will not be a successful Covid-19 vaccine until the fall of 2021 at the earliest. There never may be a successful vaccine.  Kindly act accordingly.  Covid-19 is a virus. A virus is an exceptionally hard target for a vaccine. Some virus's resist all vaccines. The Flu vaccine is about 50% effective in any year because the virus changes so much. The good news is Covid-19 is a relatively stable target. The bad news is that relatively stable viruses like, say, herpes, have resisted all vaccine attempts for decades. 

Sooooooo, as we perambulate throughout Miami, and see legions of walkers and runners in Key Biscayne not wearing masks and similar behaviors on the beaches and boardwalks throughout South Florida,  we are left with the inescapable conclusion that tougher times are ahead. 

Miami Courts are admirably working towards opening and reestablishing jury trials. However, are there work groups considering how to keep the courts running if we get hit with a worse second wave in four to six months? We do not think so. 

A word to our robe wearing readers- you are working to open the courts assuming the best- please start assuming the worst: That there will be no treatment, no vaccine, and a second worse wave in October and November. Unlike the executive branch of the State and Federal government, our judicial branches- state and federal-  have inspired confidence in their work, dedication and consideration of medicine and science. Thank you for that. But we remained concerned that, as February and March of this year showed, there is no plan for re-closing the courts when a second wave strikes. Please advise. 

Personally, the first time we qualify for the Boston Marathon, they cancel it. C'est la vie. 

Mr. Ovalle and the Herald have an article about the limitations of Zoom. From unintended backgrounds to shirtless interlopers walking in camera view, there is only so much that can be accomplished by Zoom. We are not big fans. We like staring into the eyes of a witness. Watching where their eyes dart when hit with an unexpected question. See a prosecutor squirm in her seat- or even better seeing two prosecutors arguing with each other as we lob question after question at the witness, the legal equivalent of shock and awe- the tactics that bring legions of lawyers to watch our trials when they know Rumpole is about to rise for the defense. 

Have a safe weekend. Wear a mask and stay far away from us por favor





Thursday, May 28, 2020

MORE PUSH BACK ON FRANCIS APPOINTMENT TO FLORIDA SUPREME COURT

People are looking closely at the appointment of Judge Francis, and they are not liking what they see. The first item  we post  is with FULL permission from the author who originally posted this on FACDL (so do not call Interpol to complain);  the second  item is  a shorter but equally troubling comment on this blog. A successful candidate for the Florida Supreme Court who misspelled the name of the court on her application? Very troubling.  Yes you read that right. In her application to be a Justice of the Suprme Court of Florida, Judge Francis misspelled Supreeeme Court.  And yet the Governor, giving careful consideration to the legal scholarship of all candidates decided this less than ten year member of the Bar, with no trial experience,  was the best and the brightest of those who applied. Hmmmmm……. maybe it was the hydroxychloroquine the governor was taking.*


Dear Colleagues, I urge the members to read Judge Francis's application (found by googling "Renata Francis Application") for the Supreme Court. It is sadly lacking in indicia of the kind of intellectual maturity, deep legal experience, or any of the other qualities which could make her due anything other than a kind letter of rejection, if it had been received by a JNC which was not so poisoned by partisanship and knee-jerk adherence to mere membership in an association (the Federalist Society) that it is wholly unable to recommend truly able lawyers to the high court. 
  Her writing samples are paeans to "textualism," and both turgid and prolix. (All are appellate opinions she wrote as a circuit judge and are undated.)
  Her employment record shows a mere 9 months (at most) at Shutts & Bown, where she worked in PIP defense, at a low level. No other law firm experience.
  She has absolutely no trial experience as an attorney, and her entire criminal experience was limited to serving as a bail judge. 
  The most impressive part of her 1st DCA clerkship was working for Judge Peter Webster, but she does not list him as a reference. (He was an adjunct at her law school --- the for-profit and low-rated Florida Coastal -- while she was a student there.)
  And what kind of background investigation did they do on her: she has only lived in Florida for 12 years; prior to that, she had lived in a foreign country.  Her application is dated December 24, 2019, her name went up to the governor shortly thereafter. 
  Her rocketing from a no-experience attorney through county court in Miami-Dade and then circuit in Palm Beach County is both unprecedented and puzzling. 
  It must be noted, too, that her present husband is reported as being a "consultant," no further information. (She reports a divorce in Jacksonville in 2009.) 
  Think back on former appointees: Gerald Kogan (decades as a trial lawyer), Fred Lewis (long time appellate lawyer), Peggy Quince (decades in AG's Office), Rosemary Barkett (long time trial lawyer), Raul Cantero (heavy appellate experience).  And so on.  
  The lack of time as a lawyer is the most appalling part: less than 10 years in all! Can't even take the bench until September!  
  A sad day.

And this comment on the blog: 

OMG, 2 misspellings in question 22 alone. Misspelled supreme court in question 51. She's also a carpetbagger. Moved to Florida to go to law school. 7 years as a law clerk, 8 months as a lawyer. ZERO trials! No publications. In one of her writing samples she misidentifies which parties the lawyers represent, writing that Abigail Price-Williams, THE County Attorney represents the petitioner against Miami-Dade County. This is a joke. She is supposed to replace Lagoa or Luck?! Come on, man!

Wednesday, May 27, 2020 3:48:00 P


*Yes we know we misspelled Supreme Court twice. We were trying to prove a point. 

Wednesday, May 27, 2020

LUIS PEREZ HAS PASSED AWAY

UPDATE: DOM has a pic of Luis on his blog and this information about the service tomorrow (Thursday): St Thomas the Apostle http:/church.stamiami.org/  live-streamed at 1:00p p.m., no physical attendance (the new normal). 
Donations can me made in honor of Luis at Sylvester Cancer Canter. 



We lost one of the good guys yesterday. Luis Perez who was a long time ASA and AUSA passed away after a courageous battle against pancreatic cancer. 

Luis was  always happy. He had an infectious laugh and a bonhomie- a love of life and his profession as a prosecutor. The FACDL Listserv is full of remembrances and admiration  of Luis. One of the things any defense attorney, or judge for that matter, who knew Luis was this- he was always fair, his word was his bond, and he worked for justice- a word that was more than a concept for him. 

You do not meet people like Luis Perez every day. He was special and anyone who was lucky enough to know him knew that. 

Rest In Peace dear friend. 

HR

NB This is a common name. So unless the Luis Perez you are thinking of was ONLY a state and federal prosecutor during his career, then you are not thinking of the correct person. If anyone has a picture they could share it would help. 

Tuesday, May 26, 2020

GOV. DESANTIS APPOINTS TWO NEW SUPREME COURT JUSTICES .....



THE CAPTAIN REPORTS:

YOUR TWO NEWEST FLORIDA SUPREME COURT JUSTICES ARE .......

JUDGE RENATHA FRANCIS

ATTORNEY JOHN COURIEL

Today, Governor DeSantis appointed Judge Renatha Francis and attorney John Couriel to two seats on the high court that were open when former Justices Robert Luck and Barbara Lagoa were appointed to the 11th U.S. Circuit Court of Appeals.

Judge Francis was born in Jamaica. She obtained her undergraduate degree from the University of the West Indies and her law degree from Florida Coastal Law.

Francis was first appointed to the Miami-Dade County Court bench by Gov. Scott in August of 2017. Ten months later, in June of 2018, Scott elevated Judge Francis to the Miami-Dade Circuit Court. Just over one year later, in October of 2019, Francis resigned her seat on the Miami-Dade bench only to be appointed as a Circuit Court Judge in Palm Beach County. Prior to joining the bench she worked as a lawyer for the 1st DCA and then as an associate at Shutts & Bowen.

Amazingly, Judge Francis is NOT qualified to serve on the Supreme Court. Francis graduated from Florida Coastal Law in 2010 and became a member of the Florida Bar on September 24th of that year. According to the Florida Constitution, a Supreme Court justice must have been a member of the Florida Bar for 10 years. Therefore, Judge Francis will not be eligible to take her seat on the Florida Supreme Court until after September 24, 2020.

There has been much talk about the need for diversity on the bench, especially the Florida Supreme Court. When Justice Peggy Quince retired in January of 2019, that left the high court without a black justice for the first time in 36 years. Thirty-two people applied for the two open seats on the high court, six of them black. The JNC nominated one, Francis.

Slate, in an article from April 1, 2020, wrote about the controversy surrounding Francis' nomination by the JNC and suggested that Francis’ appointment is unconstitutional. They wrote:

There are two ..... constitutional provisions that are relevant. First, Article V, Subsection 11(c) states that "[t]he governor shall make the appointment within sixty days after the nominations have been certified to the governor." (DeSantis received the nominee list in January and was obligated to make his appointments no later than March 23, 2020.).

Next, Article V, Subsection 11(a) provides that "[w]henever a vacancy occurs in a judicial office to which election for retention applies, the governor shall fill the vacancy by appointing for a term." The plain language of the Florida Constitution does not distinguish between appointment and commission. The constitutionally significant event is the appointment, which is what fills the vacancy. How can a vacancy be filled if the appointee does not take office for a few months? It can’t.

John Couriel is a partner at Kobre & Kim, where he handles high-stakes cross-border disputes, with a particular focus on Latin America. A native Spanish speaker, Mr. Couriel conducts internal investigations and represents individuals and corporations in jurisdictions including Brazil, Argentina and Mexico.

Before joining Kobre & Kim, Couriel served as a prosecutor at the U.S. Department of Justice (as an Assistant U.S. Attorney in the Criminal Division of the U.S. Attorney's Office for the Southern District of Florida), where he prosecuted significant wire fraud, money laundering, healthcare fraud, and other conspiracies, including in cases involving cross-border prosecutorial cooperation and extradition matters. 

Couriel has made more than one attempt at elected state office. In 2012, he ran against incumbent State Senator Gwen Margolis, losing badly to her with only 38% of the vote. In 2016, Couriel took a shot at the Florida House when he ran in District 114 as a Republican against Democratic candidate Daisy Baez. Baez defeated Couriel 51% to 49%; (1,336 votes separated the two candidates). Of note, Baez resigned her seat on November 1, 2017, after reaching a deal with the Miami-Dade State Attorney’s Office to plead guilty to a perjury charge related to her place of residence.

Couriel attended Harvard as both an undergrad and law school. He has been a member of The Florida Bar since 2004.

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


Monday, May 25, 2020

THIS MEMORIAL DAY

The Blog this Memorial day remembers when the President said in February  that "It will all be over in a few days" which was the  president displaying his acute powers of prognostication. It is no surprise that the man who could not even squeeze a profit out of a casino where the odds are fixed in favour of the house, has little ability when it comes to anything, especially predicting events that call for an appreciation of science. 

On Sunday the NY Times took the extraordinary step of printing some of the names of the 100,000 Americans who died because of the "nothing" that became something. Think of this. In January, 100,000 of us were living our lives. In the back of their minds was the social compact that we all live by- in exchange for taxes and military service and jury duty, and following the law, we in return expect our government to protect us in times of crisis. Except when an Orange Orangutan who delights in grabbing women by their genitals is in charge. Now four months later one hundred thousand of us are gone- dead because we did not act one week sooner in recognizing this crisis.   Starting social distancing one week earlier would have saved 36,000 lives.

We  scanned the front page of the Sunday  NY Times here, and decided to randomly reprint some of the names and descriptions of our fellow Americans who died- some because of the criminal negligence of leaders who deny reason and science. 

As we wrote this, we were overcome with the basic goodness of our fellow citizens. It was a moving experience to read and re-write the short descriptions of full lives:

Cornelius Lawyer, 84, A sharecropper's son; Michael Mika,73, Vietnam Veteran; Carl Redd, 62, squeezed in every moment he could with his only grandchild; Dez-Ann Roman, 36, innovative high school principal; Freddy Rodriguez, Sr, 89, played saxophone at Denver's only jazz club for 40 years; Roger Lene, 93, could be a real jokester; Louvenia Henderson, 44, proud single mother of three; George Valentine, 66, lawyer who mentored others; Julian Anguiano-Mayo, 51, was the life of the party; Jessica Beatriz Cortez, 32, immigrated to the US three years ago; Cedric Dixon, 48, Police Detective in Harlem with a gift for interrogation; Douglas Hickok, 57, military's first virus casualty; Horace Saunders, 96, tailor; Jose Vasquez, 51, husband and father; Angelo Piro, 87, known for serenading friends with Tony Bennett songs; Roger Eckart, 78, retired firefighter and old-school barber; Mary Minervini, 91, sign-language interpreter; Albert Petrocelli, 73, fire chief who responded to ground zero on 9/11; Florencio Almazo Moran, 65, one man army; Harold L. Hayes, 96, original member of Navy's elite underwater demolition team; Lloyd Paul Leftwich, 91, inveterate harmonica player; Ann Kolb, 78, leader in interrogating schools. Lila A. Fenwick, 87, First Black Woman to graduate from Harvard Law School; Jose Diaz-Ayala, 38, served the Palm Beach Sheriff's Office for 14 years; Kyra Swartz, volunteered for pet rescue organizations; Kimarlee Nguyen, 33, writer who inspired her Brooklyn high school students;  Leo Sreebny, 98, preferred bolo ties to neckties and suspenders to belts; Peter Kafkis, 91, worked mostly factory jobs to support his family; Marie Scanian Walker, 91, never drew attention to herself; Myles Coker, 69, freed from life in prison;  Arola Rawls, 81, caretake of her neighborhood; Bernard David Seckler, 95, Math reader for Recordings for the Blind; Cynthia Whiting, 66, a retiree determined to spoil her granddaughter; Orlando Moncada, 56, left Peru and grabbed hold of the American dream; Jerry Glowczewski, 97, last of the WWII Polish fighter pilots; Michael Hill, 58, railroad worker with a big, joyful, personality; Rodrick Samuels, 49, never let anyone mess with his younger brother; Alan F. Krupp, 83, quoted Longfellow and Tennyson from memory; Eric Frazier, 44, well regarded bailiff and mentor to colleagues; Barry Webber, 67, general surgeon who volunteered to treat Covid-19 patients; Richard Emmett Powers, 76, well respected criminal defense attorney in Detroit; Wogene Debele, 43, mother survived by her newborn child; James W. Landis, 57, loved his truck, Dorney Park, Disney World, model trains and especially California cheeseburgers; Annie Glenn, 100, champion of people with speech disorders. 

This took a toll. 100,000 Americans dead. Soon we will pass two-Vietnam wars worth of deaths. 

Sunday, May 24, 2020

RESPONSE TO RUMPOLE

Maybe we are being baited. FACDL waiving a red towel in front of the bull, provoking a charge. 
It is of course a violation of every known law on earth, as well as common decency, for Rumpole to read the FACDL listserv. The listserv is private and the contents are intended for their own, dues paying, members, who like an exclusive Boston Back-Bay club, do not want just anybody on their premises (and especially the author of this award-winning blog). 
And yet, an FACDL member posted a "Response to Rumpole" which in turn promoted several of the FACDL Member-moles to immediately send it to us. So much for the distaste for snitches. 

So here it is. Unedited. A zinger. A response. Written to us, but forbidden fruit- which is of course the sweetest. 

Listmates,

I agree with 99.5% of "The N Word" of a few minutes ago. Let's get that on the record. But the last sentence? I've got a bone to pick with that one:

There are judges in Iran and North Korea shaking their heads at this decision.But George Wallace, in whatever ring of Hell he resides, is smiling.(emphasis mine)

Here's what I know, guys: 1) There's no such thing as hell, but that's another discussion for another day. 2) If there were, then George Wallace did more to redeem himself from its fiery pit than maybe any other politician of his former ilk.

Unlike Lester Maddox or Farris Bryant or Jesse Helms (or too many others I could name--some of whom hold office today), George Wallace actually recognized his wrongs and repented. Would it have ever happened if Arthur Bremer hadn't shattered his spine at that shopping center in Laurel, Maryland, in 1972? We'll never know..

But after his rehabilitation, when he returned to office, he not only apologized for his past positions--frequently and publicly--but his policies and appointments were much more humanized, much more sensitive to the realities of his black constituents, than those of most other Southern governors of that era, aside from Jimmy Carter (who, from where I sit, will always be the gold standard). As he was often quoted, "I never knew what it was like to live as a minority in this country until Ibecame one." (This is not just anecdotal--I know this from people who were there and saw it up close and personally.)

Old images do die hard, I understand. But I no longer hear the name "George Wallace" and picture an icon of hatred standing in a schoolhouse door. Instead, I picture him behind his executive desk, in his wheelchair, humbled by his experience, but all the wiser for it, and willing to use the power of his office to make amends as he could. By all accounts, the state of Alabama was all the better for it.

To paraphrase Maya Angelou: He did what he knew.. When he knew better, he did better. I can think of no greater epitaph. We should all aspire to the same.


Tony Moss, Esq.

Friday, May 22, 2020

THE N WORD

The N word- which in our context today is "Not" preserved,  is one of Florida Appellate Judges favourite phrases. 
The word and phrase, ugly in every context, surfaced in this case
State v. Johnson.

Let's think about the philosophy behind not preserved. There was error. It was in the record. In a criminal case. Where someone is in prison. And due to no fault of the defendant, s/he does not get relief because their lawyer was surreptitiously on snap-chat when the error occurred and did not object. Now the appellate mavens will mention fundamental error. But here is the layman's explanation of fundamental error. If the error did not result in the accidental release of a Virus that crippled the world economy, then it did not reach down into the heart of the matter and is not fundamental. In other words, it is a standard that is rarely met. 

In the context of Johnson, here is what we are left with. The prosecution can make every preemptory challenge based on race. They can be as bigoted as George Wallace standing in the doorway of the University of Alabama stopping the admission of American teenagers based on their race. And if the defense does not object, no harm/no foul/not preserved. 

There will be none of the moral high ground of the Florida Supreme Court firmly stating "Bigotry and racism have no place in the American Justice System." No sireee. None of that folderol for our State and our courts. Our Judges, umpires all, will simply NOT call balls and strikes unless the batter complains. Our judges will sit quietly by as a prosecutor wearing a dixie-flag tie and perhaps a white hood strikes juror after juror based on their race, and will nary say a word unless someone says something first along the lines of "ummm..do they get to strike every black person in the venire?" 

And even then, that is not enough. There must be a magic incantation of precise words, uttered precisely, at the exact moment. Anything less and Klan Jury Consultants can work their magic for the prosecution who need not worry about an appellate court stepping in. See State v. Johnson ("To preserve the error properly, the lawyer must stand on one leg, juggle three knives, and recite the Greek Alphabet backwards. Anything less will not serve to adequately alert the trial judge that the defense believes the prosecution's use of a preemptory challenge may have been improper.") Id. at 666. 

And to think, there used to be Judges like Frank Minis  Johnson  (who sat in Alabama and helped  desegregate  the South) in this country. No more. 

Read it and weep. 


Under Florida law, the opponent of a peremptory strike cannot simply sit silent—failing to respond to a proffered facially race-neutral reason and failing to object as to why the trial court should not accept that explanation—yet challenge

that reason as a pretext for discrimination and the trial court’s ruling as insufficient for the first time on appeal. See Floyd, 569 So. 2d at 1230. To hold otherwise would not only be inconsistent with the general law of preservation, it would also improperly relieve the opponent of the strike of the obligation to prove purposeful racial discrimination, in disregard of the presumption that peremptory strikes are

nondiscriminatory. See Melbourne, 679 So. 2d at 764-65. Accordingly, we hold that the party opposing a peremptory strike must make a specific objection to the

proponent’s proffered race-neutral reason for the strike, if contested, to preserve the claim that the trial court erred in concluding that the proffered reason was genuine.

There are judges in Iran and North Korea shaking their heads at this decision. But George Wallace, in whatever ring of Hell he resides, is smiling. 

Thursday, May 21, 2020

POINT COUNTER POINT

Everyone's favourite federal blogger (and these days that includes President Trump) is at it again. This time facing off in the pages of USA today against an erstwhile but overmatched USA Today editorial board debating the General Flynn contretemps

Mr. Markus's piece is here. 

The rag's editorial's musings are here. 
Once finished reading,  they make a good fish-wrap. We always endorse recycling. 

Our view is this: we have never seen a US District court seek a third party's opinion about the government's decision to bring a case. Why does a judge need to stick his unbiased nose into the decision to abandon charges? Absent unusual circumstances like, say...an out of control president who views the DOJ as his own personal law firm, the decisions of the executive branch are not subject to sua sponte review by a disgruntled robe wearer. 

SOME GOOD NEWS:
Noma, a 4x winner of World's Best Restaurant, has opened for take out! A small bit of bad news-- Noma is in Copenhagen, but a wee bit of 12 hour travel for a Noma meal is well worth it. We've dine it before. What is the world's best restaurant serving for take out? Why of course Cheeseburgers! Freshly ground grass fed beef, organic onions, potato rolls baked fresh daily... we are checking airline schedules. At 125 Danish Kroners ($18.25 U.S), we are clearing our Amex for several days of bliss. 




Tuesday, May 19, 2020

NEW FELONY PROCEDURES

UPDATED: Ovalle and Herald report nearly 500 inmates in Dade jails have tested positive for Covid-19. That's a 41% infection rate for those of you keeping score at home. And the FACDL chatter is that prosecutors are pushing back at most bond motions because...better dead than Covid...

Presented, at great personal sacrifice without any snark or comment. They're are putting judges in Pods. It's like they are baiting us to comment, but we stand firm and present this as is.  


FELONY Corona Procedures for ARRAIGNMENTS/AC/Bond Reviews for LAWYERS, CORRECTIONS
& ALL VIRTUAL PARTIES (Courtroom 4-1)             
Effective May 15, 2020 and beyond    

Join Zoom Meeting                                                    Meeting ID: 996 0478 5521
https://zoom.us/j/99604785521

One tap mobile
+17866351003, 99604785521# US (Miami)

1.       9AM: AC’s, ARRAIGNMENTS (IN CUSTODY & UNREPRESENTED OUT OF CUSTODY), Bond Reviews

(Courtroom 1-5 will be hearing Bonds, Extraditions and In-State Fugitive Warrants Only. To access remotely  (312) 584-2401, 1051843#    OR     https://call.lifesizecloud.com/1051843 )

2.       The Court will go in Division order, AC then ARRTS then BOND REVIEWS. NO PASSING CASES SO PLEASE BE “THERE” ON TIME

3.       No DEFENDANTS will be present. CORRECTIONS will be “present” with all jail cards

4.       The PD will be appointed on all out of custody arraignments

5.       The Judge will reset cases for the following day at 10AM if there is a plea, release or other issue requiring the Defendant’s presence

6.       The Judge will set all cases for status on the date prearranged by the clerk unless otherwise indicated

7.       If the case is to be RESET for the 10AM 4-1 calendar, then CORRECTIONS must note this on the Jail Card and ensure the Defendant’s presence at the hearing via ZOOM.

8.       Please review Corona Procedures for SPECIAL SETS* for information on setting and accessing a SPECIAL SET HEARING

 Courtroom 4-1 Bench Phone Number: 305 548 4946
Or Call the Chambers of the Judge Assigned to that day’s calendar

FELONY Corona Procedures for *SPECIAL SETS - LAWYERS  
Effective May 15, 2020 and beyond  

1.       If the case was reset directly from the 9 AM 4-1 arraignment calendar then it will be heard on the 10AM calendar in 4-1 by the ASSIGNED JUDGE on the 4-1 Zoom Conference Room

2.       If the case is a SPECIAL SET from DIVISION it will be set in one of 3 courtrooms depending on the Division.

3.       To place a case on a SPECIAL SET calendar, you must go through the Division Judge.  Do not contact the the COC. All arrangements must be made through the Division Judge. Please make sure you have EXHAUSTED the possibility of an agreed order or ruling on the pleadings.  Please include 1. If your client’s presence is required 2. If your client needs an interpreter 3. Name, Case #, JLN, dob of your client 4. COPY YOUR OPPOSING COUNSEL ON THE REQUEST

4.       PLEASE DOUBLE AND TRIPLE CHECK THE INFORMATION PROVIDED TO JA for accuracy.

5.       FOR PLEAS MDCR will be taking fingerprints at the facilities. Prosecutors must email scoresheets to the JUDGE/JA for signature and filing.


Pod 1: 4-1                                                    
Div.   1/Simon
          5/de la O                                          
          6/Cruz                                               
        18/Milian
                21/Wolfson
                70/Fernandez   

Pod 2: 4-2

Div.  2/Fernandez-Karavetsos
        3/Diraimondo                                  
        4/Pooler                                            
        7/Miranda
 9/Johnson
        10/Brinkley
        12/Areces

Pod 3: 4-7

Div.  11/Venzer
         13/Hersch                                        
         14/Watson                                      
         15/Beovides
         17/Blumstein
  19/James (covered by MTM)
         20/Altfield

Meeting ID: 996 0478 5521
One tap mobile +17866351003, 99604785521#
         
Bench Phone: 305 548 4946

       Meeting ID: 914 3160 2221
One tap mobile +17866351003, 91431602221#

Bench Phone: 305 548 4927

Meeting ID: 932 3462 8428
One tap mobile +17866351003, 93234628428#

 Bench Phone: 305 548 4984      

(See below for an abbreviated version of Special Set Procedures for Judges)                 
FELONY Corona Procedures for SPECIAL SETS - JUDGES 
Effective May 15, 2020 and beyond     

1.       The Judge must screen all requests for hearings and determine whether
a.       The issue can be ruled on without a hearing
b.       The issue necessitates a hearing

2.       The Judge/JA must RESERVE a time slot by contacting the POD coordinator.  Lawyers cannot request a reservation directly.  All requests must come from the Judge/JA.

3.       Requests must indicate a reasonable period of time for the hearing, being considerate of other colleagues that may also need access to the Courtroom.

4.       Once the time/date are reserved then the Judge/JA/Bailiff of the division are responsible for sending notice to the parties and agencies: lawyers, corrections, interpreter, court reporter, probation and the clerk.

5.       Effective 4/13/20 – the Court can hear matters in 4-1 via Zoom that are not emergencies or critical matters, at the discretion of the division judge and giving priority to other matters that are in fact critical or emergencies.

6.       You must use the new MEETING IDs provided.  These IDs will work with the new ZOOM simultaneous interpretation function and these IDs are being distributed to all parties & agencies.



Monday, May 18, 2020

TIMELINE AND A REQUEST FOR HELP ON AN OLD CASE

Unofficially, we believe that sometime around the first week of June many of  your favourite Judges will be streaming (with masks) into our beloved REGJB to conduct their own Zoom calendars. So in June courts will be operating with more judges conducting remote access hearings. No contestants in your favourite criminal justice game show will be in the studio audience until the all-clear whistle is sounded sometime after the July 4th holiday. This is an unofficial update and this post has not been approved by the motion picture association for all audiences. It represents our best guess as to what is happening and has not been approved with the express written consent by the National Football league and Monday Night Football or any one else (e.g., any of your favorite chief or administrative judges) as an official policy as what will be occurring.  Do not go to court June 1 wearing your bow tie and bowler looking for a judge to receive you. You will be denied entrance. 

As another example of unofficial guesstimate, the Feds are looking to resume jury trials in January 2021. 

Many years ago, REGJB Circuit Court Judge Martin Kahn used to hold cooking contests for his courthouse staff. Best lasagna and the like. It was during a time when people were nicer to each other and enjoyed each other's company and cell phones were the sizes of bricks. Now, we are wondering which judge will hold the "best mask" contest?  Our entry will be a mask that says on the front "The Right To Remain Silent". 

In all seriousness, will this virus stop cops from putting clients in those tiny interview rooms and leaving them there for five hours before returning to get a confession (after plying them with Big Macs and fries)? Maybe our clients will wise up and refuse to speak: "I ain't going into that small room with you copper" they will say.  Or instead of a Big Mac, fries and a coke, maybe the new way to get clients to speak will be with a new N-95 mask and plenty of hand wash.  
We have little worry about ever confessing: 
Cop: Can I get you something to eat before we begin?
Rumpole: Certainly. Our friend Daniel Humm runs Eleven Madison Park. If you tell him it's for Rumpole he will put together the cheese fondue in the butternut squash and some foie gras. Also I could go for the smoked eel with the fried Brussel sprouts.  And if your guys are hungry I highly recommend the celery root in pig's bladder. It's like nothing you've ever had. And you cannot go wrong with the braised pork collar. 


MAX KOGEN 

Max Kogen was an REGJB lawyer/legend before most of our robed readers were in diapers. We received this email asking for help:

I Am a researcher studying the trial of Mary Ivonne Axelson Cropper, 1975 for the 2nd degree murder charge, accused of murdering her mother, Mary McDougal Axelson.

 

Mr. Kogen successfully defended Ms. Cropper.

 

Tried in vain to obtain a transcript of the trial, or at least a synopsis of some sort detailing testimony.

 

Do you know anything of this trial or can you point me to resources?

 

Aloha,

Larry Bartley

Kailua, Hawai'i 96734

We have received permission from Mr. Bartley to post his email so that anyone who can help him can contact him directly:   larryknb@hawaii.rr.com

Keeper of the REGJB flame though we may be, this trial escapes our memory. We would love to have someone educate all of us about this.