WE HAVE A NEW JUDGE ON THE 3RD DCA .....

THE CAPTAIN REPORTS:

"A MOOSE IS NOT A BEAVER"*

CONGRATULATIONS TO NEWLY APPOINTED THIRD DCA JUDGE THOMAS REBULL .....

Governor DeSantis has finally appointed Judge Thomas Rebull to replace retired Third District Court of Appeal Judge Kevin Emas.

Congratulations to Judge Rebull.

It only took 115 days, countless unanswered emails and telephone calls, and a Petition for Writ of Mandamus filed in the Florida Supreme Court by the ACLU of Florida before the Governor complied with the constitutional duty he swore to uphold.

Judge Kevin Emas retired on March 31, 2026. Earlier, on March 17, the Third DCA Judicial Nominating Commission had certified six nominees to Governor DeSantis.

Article V, Section 11(c) of the Florida Constitution could not be clearer:

"The governor shall make the appointment within sixty days after the nominations have been certified to the governor."

Sixty days came and went.

No appointment.

Your humble CAPTAIN JUSTICE then began asking a very simple question:

Why?

Blog posts were written. (They can be read here and here.)

Emails were sent.

Telephone calls were made.

Voice messages were left.

General Counsel David Axelman and Assistant General Counsel Taylor Gustafson—who oversees judicial appointments—never responded.

Not once.

With no explanation forthcoming, Captain Justice contacted the ACLU of Florida and asked that it consider filing a Petition for Writ of Mandamus to require compliance with the Florida Constitution.

The ACLU agreed.

Judge Kevin Emas agreed to serve as the petitioner.

The lawsuit was filed on June 30, 2026.

The Florida Supreme Court promptly ordered Governor DeSantis to respond within ten days, setting a deadline of Friday, July 10, at 5:00 p.m.

The handwriting was on the wall.

Earlier today, Governor DeSantis finally appointed Judge Thomas Rebull to the Third District Court of Appeal.

Then, at approximately 4:30 p.m.—just before the Supreme Court's deadline—General Counsel David Axelman and Assistant General Counsel Taylor Gustafson filed the Governor's response.

Did they acknowledge that the constitutional deadline had been missed?

Did they apologize?

Did they explain why the Governor ignored the Constitution for nearly two months beyond the deadline?

No.

Instead, they asked the Supreme Court to dismiss Judge Emas' petition as moot because the Governor had "already" made the appointment.

Problem solved.

Nothing to see here.

Move along.

What an extraordinary way to defend a missed constitutional deadline.

Congratulations again to Judge Thomas Rebull. By all accounts, he will make an outstanding appellate judge.

We also understand that Judge Rebull is presently drafting a letter to Captain Justice. We imagine it goes something like this:

Dear Captain Justice:

Thank you for your tireless service to Florida's legal community. Nobody keeps a closer eye on judicial appointments and judicial elections than Captain Justice. We especially appreciate your continuing coverage of "The Name Game."

Thank you for refusing to let this constitutional deadline disappear into the Tallahassee bureaucracy. Had you not continued asking uncomfortable questions, writing blog posts, sending emails, making telephone calls, and ultimately involving the ACLU, I might still be waiting.

As a newly appointed judge, I promise to do something my appointing authority failed to do for 115 days: faithfully follow the Constitution that I have sworn to uphold.

Sincerely,

Thomas Rebull

(Editor's Note: The preceding letter may contain slight embellishments.)

Now we turn our attention to the Governor's next four judicial appointments: two Circuit Court vacancies (Judges Marcia Caballero and Jose Rodriguez) and two County Court vacancies (Judges Yara Klukas and Jason Reding Quinones).

The constitutional deadline is July 19.

We'll see whether the Constitution matters this time.

*"A moose is not a beaver" may be the greatest opening line ever written in a Motion to Dismiss.

The quote comes from litigation filed by Buc-ee's against the owners of the Mickey Mart chain of convenience stores in Ohio. Buc-ee's claims trademark infringement because Mickey Mart's logo features... a moose. (Buc-ee is a Beaver).

Counsel for Mickey Mart responded with the immortal observation:

"A moose is not a beaver."

Sometimes, lawyers really do write the best comedy.

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

POST ELECTION ANALYSIS ........ COVID STYLE

THE CAPTAIN REPORTS:

SOME POST ELECTION ANALYSIS .......

JUDGE TUNIS

The Blog has rarely received as much negative commentary about one criminal court judge. Peter Adrien comes to mind, but that was for a totally different kind of criticism. No doubt Judge Tunis was not a favorite of many of our readers.

First, Tunis got caught with her pants down. She sat on the County and Circuit Court bench for 20 years and she never once had opposition in an election. She expected the same in 2020. Her opponent, Ms. Aponte, it could also be said, never drew so much commentary compared to any other challenger to an incumbent. That commentary from our readers was certainly ignited by the explosive writings of our Blog's Author, Horace Rumpole.

Aponte filed against Judge Gordon Murray in Group 38 of County Court in September of 2019 and she Qualified for that race. She was in that race through Thursday of Qualifying Week. It was one day before the end of Qualifying when she pulled the switcheroo and jumped into the Circuit Court race against Tunis.

Tunis threw down $150,000 of her own money into her campaign war chest figuring that would scare off any opponents. In fact she did virtually zero campaigning through March of 2020. She had only raised $8,575 when Aponte jumped into the race. Contrary to some comments from yesterday, Tunis did go on to raise a total of $128,000 from 326 contributors for the overall campaign.

Aponte, as I reported earlier, had the least amount of contributors for a winning contested election in the history of Miami-Dade County, ten people gave a total of $6,300 (and two of them were Joe Klock ($750) and his Law Firm Rasco Klock ($500).

Anyone who actually thinks that the 209,895 citizens who cast their vote for Aponte had a clue as to the negative commentary about Tunis - well, you all have been smoking your client’s hydroponic weed.

Aponte lost in 2016 to Oscar "Rodriguez-Fonts"; (Carol Breece was also in that race; Aponte came in third). Aponte lost in 2018 to Kristy "Nunez".

JUDGE REBULL

Another incumbent who drew a last minute challenger. Ms. Martinez-Scanziani also filed on the Thursday of Qualifying Week, one day before the deadline. But, Rebull was prepared for a challenge. He raised more money than we have seen in a contested raise in probably the past two decades. Rebull raised a total of $408,400 and spent over $387,000 as of last week.

Ms. Martinez-Scanziani raised only $55,000 and spent it all. She also was a previous two-time loser having lost to Judge Bernie Shapiro in 2008 and then again in 2016 in a four way race against eventual winner Mark Blumstein, and Luis Perez-Medina, and Renee Gordon; (Martinez came in last).

For those of you who think that the 192,744 voters for Martinez-Scanziani knew anything about the "transcript" or about Rebull and his courtroom demeanor - well you all have been smoking the same weed.

JUDGE MANSFIELD

Joe clearly was not prepared for a campaign. Not sure why as he was an appointed judge facing the voters for the first time. He raised $17,800 while his opponent Miguel Mirabal raised over $68,000. (Does Mirabal’s campaign photo remind you of a 1970's porn star?). (Go here for a look).

A wise commenter pointed out that Anglos have beaten Hispanics in recent judicial contests. But, what they didn’t factor in was the very different kind of campaign we had in 2020. Pre-Covid was the time when every candidate attended a live breakfast in Homestead or Perrine, a lunch in Little Havana or Hialeah and a dinner in Aventura or Miami Gardens, every single day from April until August. Thousands upon thousands of voters had the opportunity to see and hear and speak with the actual candidates. They were much better able to separate the wheat from the chaff. Not so with this election - and that my friends made all the difference in the world. Heck, Rosy Aponte, not only didn’t have to attend those breakfasts, lunches, and dinners, she didn’t even attend the Zoom forums following her "colored people" comment to the Black Lawyers (Wilkie D. Ferguson Jr. Bar Association) forum.

NORTH OF THE BORDER

STATE ATTORNEY

A complete shocker in Browierd as heavily favored candidate Sarahnell Murphy, a 24 year veteran of Mike Satz’ office and the candidate Satz endorsed lost in an eight way battle to a black attorney named Harold Fernandez Pryor. Pryor has been an attorney for all of seven years; (he served as an ASA for three of them). In fact Murphy could do no better than third behind Pryor and Joe Kimok (who lost to Pryor by a mere 2,600 votes out of the 206,200 cast).

Expect to see a major shake-up of the policies and procedures in the Broward State Attorney’s Office and they are both welcomed and way overdo.

PUBLIC DEFENDER

No surprise in Broward’s newly elected PD Gordon Weekes, who was Howard Finklestein’s number two for the past decade. What was a shocker is what Finkelstein did the day after the election.

He fired Weekes opponent, Ruby Green. Weekes faced retired judge Tom Lynch and Green; (Ruby came in a respectable second place). Green is 33 years old and had spent her entire eight year career working for Finkelstein and under Weekes. Weekes was the anointed successor to Finkelstein but Tom Lynch, and Green, decided to take their best shots.

Green is the current President of BACDL and she told the Sun Sentinel that she had no doubt she would be terminated after the election. From the Sun Sentinel:

"I was told not to run, I was told I couldn’t do it and I was told I was going to get fired," she wrote. "Nevertheless, I persisted because I know I am the change we seek. I know that there are so many things that happen in this office that are just down right WRONG, and I refused to sit back and let it happen ... This is not going to stop me."

Green received the following email from Finkelstein, on Wednesday at 8:34 AM:

"Thank you for your service. Your services are no longer required. Your termination is immediate."


T-74 days until the real Super Tuesday, November 3, 2020

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

THUS SPAKE ZARATHUSTRA....AND HIRSCH AND REBULL

Ms. Harrell was arrested for DUI and resisting without violence. Things went downhill from there. She won the battle (acquitted of DUI) but lost the war (convicted of resisting without violence).  The conviction was upheld on appeal by an appellate panel of the 11th Judicial Circuit. 

The opinion cites to John Marshall's closing argument in Commonwealth v. Randolph,  cites approvingly to the common law circumstantial evidence rule, and includes an old lawyer's ditty on circumstantial evidence.  All clues which would lead the  "aporetic"* reader to conclude s/he was holding in her hands nothing less than a Judge Milt Hirsch appellate opinion. 

The opinion is well worth a read and indeed a careful study for its elucidation of the common law circumstantial evidence rule (something every trial lawyer should know), a careful recitation of what lawyers need to do and say during the all important motions for judgment of acquittal, and an excellent primer on the difference between direct evidence and circumstantial evidence. 


With commendable lawyerly afflatus, appellate counsel for Ms. Harrell seek to divide and conquer. They bifurcate the crime into its actus reus and its mens rea, then argue that the latter was
not proven otherwise than circumstantially.
But this bifurcation has no place in the application of the common-law circumstantial evidence rule...

Notable in this opinion is the concurrence of Judge Rebull in which he very clearly signals his distaste for the use of the common law circumstantial evidence jury instruction. Rebull is not alone in his antipathy towards the instruction; he cites to a Florida Supreme Court decision calling the instruction "confusing, and incorrect" and "unnecessary." 




A warning: read the penultimate paragraph of the opinion, in which the court opines that rarely if ever, should a court grant a motion for a judgment of acquittal based on application of the common law circumstantial evidence case. The court likens the successful application of the law as to the existence of a quark- we know it exists, but it hasn't yet been seen. This is an ominous conclusion for the defense bar. It is supposedly supported by logic. See FN5, which we believe will become infamous in its erroneous application of circuitous logic, or more precisely:  a dangerous informal fallacy.   Such conclusions (a court should never grant a motion for judgment of acquittal in a purely circumstantial evidence case) have no place in this, or any opinion. 

Lesson from all of this falderal? Thus Spake Zarathustra, A book For None and All:

O man, take care!
What does the deep midnight declare?
"I was asleep—
From a deep dream I woke and swear:—
The world is deep,
Deeper than day had been aware.
Deep is its woe—
Joy—deeper yet than agony:
Woe implores: Go!
But all joy wants eternity—
Wants deep, wants deep eternity

Thus Spake Hirsch and Rebull in Harrell v. State. An opinion for None and All. 

*Borrowed, without permission, from the opinion. The term describes a person who has doubt, is puzzled,  or is otherwise at a loss...