AN ARTHUR HEARING

THIS IS THE CITY. MIAMI, FLORIDA. 

There's a lot to do here. You can splash in the surf, eat like a king, dance until dawn, sail a boat at sunset. According to the 2010 census, there's 2,496,435 people who call this city home. And when one of them dies, that's when I go to work; I write a blog. 

The story you are about to read is true. The names have not been changed. The defendant is presumed innocent. 

On October 7, 2013, an Arthur Hearing was held at the Richard E. Gerstein Justice Building. This is how it unfolded as  tweeted by Herald reporter David Ovalle:

David Ovalle ‏@DavidOvalle305

In court for missing body Arthur hearing. Actually this is my first hearing of any substance in Judge Hendon's. Det. Juan Segovia up first

David Ovalle 
Det. Segovia says Maqueira, laughing and mocking, constantly challenged them to show him Raquel's body.

David Ovalle 
Alex Michaels bellowing re: why MDPD never records most interviews (this case, post-sworn statement). Judge calmly overrules objection

David Ovalle 
Det. Segovia says Maqueira, laughing and mocking, constantly challenged them to show him Raquel's body.

David Ovalle ‏ 
For leverage in interrogation, Det. Segovia showed Maqueira that his daughter was in office talking to cops. "He looked like he saw a ghost"

David Ovalle ‏
Alex Michaels objected. "Not sure the detective is familiar with ghosts ... what they look like," Michaels said.

David Ovalle 
Prosecutor asks about unnamed jailhouse informant.  "You can call him Rat No. 1," Alex Michaels says. Judge shakes head, says nothing

David Ovalle 
Alex Michaels just went ballistic, pointing out Maqueira's phone located at scene of vanishing, not neccesarily defendant himself

David Ovalle ‏
To explain why his phone pinged in area of estranged wife's disappearance, Maqueira claimed that he gave it to her as an impromptu gift. 

This is one of those rare, but not unheard of cases of a murder prosecution without a body. The arthur hearing didn't conclude on Monday.

See You In Court. 

NEW BOND HEARING/ARTHUR HEARING PROCEDURES

JUDGE BLAKE DOES NOT ANSWER OUR EMAILS

HOWEVER HE DOES EMAIL THE FACDL


HERE IS WHAT HE HAD TO SAY

1) Circuit Judges will do their own Arthur Hearings.
Cancel that 3:00 PM tee time guys.

2) Two new Judges will handle bond hearings Monday through Thursday, with a special guest retired Judge for Fridays.
Who said consistency in setting bond amounts was a good idea anyway?

3) NO MENTION OF GERRY KLEIN.
DADE JUDGES SILENT ON OUSTER OF JUDGE KLEIN DAY SIX.
Fair warning here dear robed readers, we have several reporters who have been speaking with us about this story. Your silence is deafening.

Finally: What about the "dade rule" that because police make so many bogus arrests for non-bondable offenses, that you cannot get an Arthur Hearing before the arraignment? Will that now change?

Scenario: Man and wife are getting divorced. Wife locks husband out of home. Husband climbs through window, gets belongings, including his prized Buck Knife, and as he is walking out the door he is arrested for......? You guessed it- Armed Burglary. Husband can't get bond until 21 days later.

Is this going to change? Are the courts going to be more responsive to the police's blatant manipulation of the system? Or like the Gerry Klein mystery, are our Judges just going to sit there saying "see no evil"??





This really isn't our criminal judiciary, is it?

Here is Judge Blake's perky email:

Hi Everyone,
It now appears that a solution has been found for the weekday bond hearings. Senior Judge Tom Peterson and Judge Fred Seraphin will be handling bond hearings Monday-Thursday. Our Chief has been able to arrange that senior judges will cover the bond hearings on Fridays. This new procedure is scheduled to begin on Monday, June 25th. Because Judge Seraphin will now be doing bond hearings and county court back up, it will be necessary for each division to handle its own Arthur Hearings. I will be asking Fred to send out an email to us to let us know things we should be looking for and see if legal can assist us with any questions we may have. At this time, it appears that some Arthur Hearings currently set during the week of June 25th may be reset in your division. I am sending this email to the judges and JA’s so everyone is aware of the changes. As always thanks for your cooperation and call me with any questions. Stan


Rumpole says, we can only wish some of our clients were as silent as the Dade Judicial Administration on the Judge Klein issue. Well, they do get to see the stupidity of speaking to the police, so we really can't blame them for lawyering up.

AUTHOR ARTHUR

Controversy surrounding the State Attorneys Office's unannounced policy of revoking plea offers for Defendants who request Arthur Hearings has been making the rounds lately.

Here is what we think:

Do not give into this “policy”. If a prosecutor insists on threatening your client, request that they put it in writing. If they refuse, ask why they will not commit to their policy in writing.

Ask them what they are afraid of? If they refuse to put the threat in writing then you should confirm the conversation in writing and file a copy with the court. Of course the prosecutor would not put something like that in writing, because they know, and we know, such a policy is unethical and would be grounds for discipline from the Bar.


Lets game play this out a little bit.

A prosecutor that threatens not to make any plea offer if a defendant elects his or her rights under the Florida Rules Of Criminal Procedure to seek a bond in a life felony case, is basically abandoning their responsibility to seek justice. If a client has an Arthur Hearing would the prosecutor continue to prosecute the defendant if they later learned the defendant was innocent? How about the requirement to seek justice and proper punishment? Is it ethical to seek life in prison for an individual who otherwise should be placed on probation, house arrest, or receive youthful offender sanctions based on the specific facts of the case?

A prosecutor who threatens you with a "policy" is stating that they will no longer evaluate a case based on the specific facts. Does that seem right? A prosecutor would never publicly admit to abandoning this responsibility, and therefore like any bully, like any individual who makes illegal threats, the way to handle the threat is to cast the light of truth on the situation. And like any bully, publicity is the last thing they want.

Can you imagine Kathy Fernandez Rundle standing on the courthouse steps and proudly announcing her office’s new policy of seeking the maximum for any defendant who has the audacity to defend themselves and invoke rights guaranteed by the Florida and Federal Constitution?

If we as defense attorneys let them get away with this, what is next?

A policy to seek the maximum sentence for any defendant who does not confess?

A policy to seek the maximum sentence for any defendant who takes deposition?
Sy Gaer already has more than enough business.

Make no mistake that such a policy is a direct attack on the criminal defense bar, the Constitution, the courts, and our clients. We cannot and shall not allow prosecutorial bullies to scare any defendant into forsaking any right they are guaranteed.
If we do, we as defense attorneys bear the shame, because we know better.


A prosecutor's case load is too heavy? Tell it someone who cares. We don’t ask prosecutors to offer lesser sentences because we’re too busy. A responsible lawyer handles their own problems and does not let their problems effect any particular case.

It takes a lot of time to prepare for an Arthur Hearing?
Do your job.
As citizens of Florida, we depend on good and honest prosecutors to do their job and prosecute those individuals who deserve it. A person who kills someone or commits a sexual assault may well deserve to spend the rest of their life in prison. A 17 year old kid with no priors driving a car occupied by someone who has just committed an armed robbery may well deserve youthful offender sanctions. And any prosecutor who would have the vicious and evil intent to punish him with a life in prison sentence because his attorney requested an Arthur Hearing deserves to be disbarred.

David O Markus, who runs the Federal Blog is president of the FACDL Miami chapter. He has been receiving emails on this issue. If you are currently having a problem, you should contact him. But take our suggestion and see if the prosecutor who threatens your client will put it in writing. And if they refuse to do it, write them a letter confirming their “policy” and send a copy to Kathy Rundle Fernandez and she how she responds.

We have nothing to fear from this except our own temerity and inaction.

Our system of adversarial justice depends upon both sides aggressively advancing their cause. The system stops working when one side gives in prematurely. The only thing that can come out of a well contested Arthur Hearing is a well developed set of facts for the rest of the case to proceed on. What's wrong with that?

Tragedies happen- and innocent people are convicted- when defense attorneys pre-judge a case and abandon their job to challenge the evidence aggressively, ethically, and legally.

See You In Court, and at Arthur Hearings in any and every case where our client is entitled to one.