SOMETIMES WRONG NEVER IN DOUBT

 Our sagacity was called into question as assistant public defenders celebrated some sweet victories while violating one of Rumpole's most sacred rules- never try a case during the first two weeks of the year. 

We extend our congratulations to jobs well done. 

From: facdl-miami@googlegroups.com <facdl-miami@googlegroups.com> On Behalf Of James Dubray
Sent: Sunday, January 12, 2025 7:17 PM
To: facdl-miami@googlegroups.com
Subject: FACDL-Miami APD Trial Victories

FACDL-Miami,

 

Rumpole counsels to never try a case in the first week of January, but four Assistant Public Defenders proved him wrong!

 

Please join me in congratulating the following Assistant Public Defenders for kicking off 2025 with trial victories:

 

• APDs Samantha Cook and Daniela Torrealba (who else, lately, right?) heard the magic words 5 times on a case where the top counts were two F1 Aggravated Batteries in front of a covering Judge Javier Enriquez. They saved their client from an unwaivable 10-year minimum mandatory sentence after his one and only arrest in this self-defense case.

 

• APDs Cameron Costello and Vivian Pitchik’s F3 Grand Theft Vehicle case never made it to the jury after Judge Gonzalez-Marques granted the defense’s first Motion for Judgment of Acquittal. This client’s actual innocence was apparent from the moment he was arrested, but the State preceded to trial nonetheless. Not delaying the inevitable, the judge’s granting of the JOA motion stopped the bleeding of our tax dollars, sending the client and jurors home before the defense could begin to present their case.

 

Big stuff to kick off the year!

 

Best,

 

James

 

James R. DuBray

Director of Training and Professionalism

Board Certified Criminal Trial Attorney

Assistant Public Defender

One of our lesser-known mottos comes into play here with the trouncing of the SAO by PDs Costello and Pitchik- 

A day without a JOA is a day without sunshine. 

Well done. 

Well done indeed.  

 

THUS SPOKE JUDGE MOORE

 It's not "Thus Spoke Zarathustra" but its another of those "can't miss"..."gotta read" admin orders from our outgoing SDFL Chief Judge Michael Moore. Not sure what is different than the prior Admin Orders, but the scuttlebutt is that they really mean it when they say that jury trials will resume July 6, 2021. In other words its "an order for all and none". *

And we say...well done Judge Moore! You kept the courts running; you kept lawyers and litigants safe by not foolishly demanding they appear in court for trials like some other nameless counties in Florida where masks are scoffed at, and POTUS 45 had the election stolen. 

Wait until you cannot sleep, then scroll down and sweet dreams. It basically says you have to wear a mask in the building; you have to socially distances in the elevators; the courts will keep running and the judges may use their own discretion in setting hearings in court, but are encouraged to use Zoom.  And July 6 is the target date. Grill some ribs and burgers and red hots on the fourth. Shoot off some fireworks. Have some cold beers and ...show up and pick twelve on Monday: "The defense is ready your honor!" Cannot wait to say that again. 

2021-33 Coronavirus Public Emergency - Ninth Order Concerning Jury Trials and Other Proceedings 04-06-21[1]... by HR on Scribd

 

 *Its a literary reference that most likely will go over the head of our robed readers. 

WADLEY TRIAL DAY TWO

UPDATE # 2 The best words in our job: NOT GUILTY. 

UPDATE THE TRIAL IS OVER WE TWEETED THE WHOLE THING. PD ROBERT VALDES KILLED IT IN CLOSING. A GREAT JOB. DURING THE VERDICT THE AUDIO WENT OUT. WE HAVE NO IDEA WHAT THE VERDICT WAS. STAND BY 

 The trial that has transfixed the nation continues in Miami's REGJB today, with Judge De La O, at the end of jury selection on Monday telling the jury that the trial "will be over tomorrow" and then, in answering a juror's question, wisely responding "there is no time limit" on how long the jury can deliberate. 

Can it get any more exciting than this? 

An inside source tells us that openings are expected around 9:30 am. So brew that second cup of coffee and save that donut and sit back watch some real Mi-am-uh lawyerin this morning. 

We will again be live-tweeting the proceedings @justicebuilding.  Follow us for insightful commentary you will not get anywhere else. 

It's kind of interesting to consider putting a jury on the clock, like the NBA 24 second clock, but with more time depending upon the level of the crime. Say 150 minutes for 3rd degree felonies, 180 for second degree felonies, and so on. There would be a clock in the jury room and one in the courtroom and the participants could all count down to the final seconds. Each side would get a few time outs, with the lawyer standing up and dramatically putting their hands into a T before the judge, who would blow a whistle and order the clerk to stop the clock. 

And if we are going to do all that, then we might as well take away Judges'* robes and put them in stripped shirts. 

Because in ruling against us on Twitter in our epoch battle for the soul of the legal profession,  "Judge M" as he apparently doesn't mind being called, is along with  Mr. Markus's,  the foremost opponent of tradition in our profession. Of course we must admit we greatly admire Judge M's thinking outside of the box and conducting Jury selection in the jury pool room. It shows a clear preference for substance over form and an ability to do something different to protect everyone's health- precisely the type of thinking and judging we need these days to re-open the courts and keep everyone safe. 

 * In reviewing our post, we noticed the missing apostrophe designating possession in our original post. And since Judge Robert Watson has joined blog irregulars as our foremost critic of punctuation, we didn't want to receive a comment chastising and embarrassing us. 

LETS PICK SIX! ANOTHER TRIAL IS STARTING

 If it's Monday in the REGIB, then it is time to try a case. Remember when? 

(Don't miss below where Judge De La O rules  against us in our battle against Mr. Markus). 

Well today Judge De La O is finishing voir dire in an armed robbery case where defendant Odell Wadley  has been in custody for two years. Jurors were pre-qualified over zoom last week  and the final panel of 36  is heading -masks on please- to the REGJB to perform their public service in very trying times.  The good news? Parking will be a snap. 

We have had the occasion to email with Judge De La O who has continually assured us that all participants, lawyers, the defendant and courtroom personnel have been made aware that this trial is taking place only because they feel safe and secure to proceed. No lawyer or other participant will be forced to trial in Miami if they have any health concerns, and this has been the policy since the beginning of the pandemic.

The prosecutors are  Casey (Double C) Corey  and Kevin Bentancourt. The defense is Robert Valdes and John  (JOA) Sullivan.  You can watch this extravaganza on the 11th Judicial Circuit's own CourtTV on You Tube.

 Depending on our day, we just might  live tweet the trial @justicebuilding. 

It may not be Ali/Frazier I (see below), but we note that today is the 50th anniversary of the true fight of the century- the only time two undefeated heavyweight champions met for the title. 

Has our new CJ thought about selling spots on the live stream? Along with announcers, we can turn this into something: 

Gene: "Howard, there is a sidebar going on over presumably the prosecution's desire to use a picture of the crime scene in opening before it's been admitted."

Howard: "That's right Gene. It should be an easy call for De La O on this matter. Pictures are often used in opening by both sides.  But while we are on this break, the law firm of Dewey Cheetum and Howe wants you to know that when trials don't go the way you hoped they would, DC&H are available for immediate consultation for appeals and that includes an appellate bond."

Gene: "They're done at side bar Howard. I like the way the defense includes their client in these matters. Making a point before the jury to touch her on the arm and then inform her of what occurred at side bar. As we have said many times, it is oh so important for the defense to humanize their client before the jury."

What say you CJ Sayfie? Have we got an idea here or what? 

Speaking of Judge De La O, he issued a decision on his twitter @delao that was a bitter pill for us: 

. Comes now the Court to rule. You are a great lawyer, Rumpole. You put up a strong fight in a losing battle. O'Marcus is not only right, he made his case succinctly. You were more entertaining, but he wins handily.

Permit us to opine that perhaps his twitter handle should be @delanoideawhatheistalkingabout.....too long? 

It is hard to convey to this Starbucks/millennial generation what Ali/Frazier I was. It was not just a sporting event. It was the greatest event in the greatest city in the world. It was all anyone could talk about for weeks before the fight.  Ali had previously lost his title when it was stripped from him because of his stance on the Vietnam war. Frazier was the champ, and in his own right he was a great great champion, boxer, athlete and man. That night was deservedly Frazier's night when he threw and landed perhaps the best left hook in the history of heavyweight championship fights. How Ali got up and finished the round is indeed a testament to his own greatness. How big was the event? Frank Sinatra was ringside as the photographer. Hollywood star Burt Lancaster was one of the announcers. A young Rumpole was left to scrimp and save twenty dollars to watch it in a movie theater on closed-circuit. 

Watch the whole fight on You Tube when you have 100 minutes. The ebb and flow is breathtaking. Up to the start of the last round it was anybody's fight to win although Joe had staggered Ali on the ropes in the 11th. And then in the 15th  Joe showed why he is, like Ali, a champion for the ages. It is rare you get two men as great as these two at the same era in a sport. Each could not have been what he was without the other. 

JURY TRIAL!!

UPDATE: VERDICT

We the jury this 2nd day of March, 2021, as to the charge of battery find Oscar Mondeja, NOT GUILTY so say we all. 

Congrats to assistant public defenders Kai Fiske and Dionne McDonald-Josephs who now have done something almost no other criminal defense attorney will ever be able to say they did- get a not guilty in a criminal trial in March 2021. Well done....well done indeed.  

(of course we predicted it). 

They picked six today at 1351 NW 12th Street, otherwise known as our battered and mostly empty Richard E Gerstein Justice Building.   175 NW 1st Ave, a/k/a the Lawson Courthouse, a/k/a family court and DV. 

State v. Oscar Mondeja M19-25767. Judge Eleane Sosa-Bruzon presiding. 

The charge? Battery most foul. 

Here is the You Tube Video. If anyone has the tik-tock- please send us the link. 

 

You can live-stream what is being called "the trial of the pandemic" on You Tube- did you know your Eleventh Judicial Circuit Of Florida has their own you-tube channel? 

It's the SAO vs. The PDs. The Veags line is Oscar -125 (he is favored to win- if you want to win 100 you have to lay a buck and quarter). 

Can you imagine the conversation the attorneys had yesterday? 

Q: Hey what are you doing tomorrow? Want to go to the beach? 

A: No I have a trial.

Come on. 

No, really, I have a jury trial. 

Fine, if you don't want to hang out just say so. No need to lie. 

The Docket:

135	03/02/2021		JURY PANEL SWORN
	134	03/02/2021		TRIAL HEARING SCHEDULED FOR 03/02/2021 AT 09:00 TRIAL HEARING RESET

JURY TRIALS

BREAKING: Tiger Woods injured in one car accident in LA. We watched the news conference. Do the stupid questions reporters ask annoy you as much as us? Just once I'd like to see a sarcastic answer: 

Q: Was any special treatment given to Tiger Woods because he is a celebrity?

A: Yes. Of course. A second and newer ambulance was sent once we were alerted who was injured. The head of orthopedics was called to the hospital to handle the surgery instead of the on-call resident. We have a celebrity-injury check-list that we go through once we realize a celebrity is injured. For example Mr. Woods was offered to have the ambulance stop for a cafe latte once it was determined he was stable. Also a cleaner ER than the standard one was used.  

What if we never get back to normal? What if Covid19 lingers and there is a Covid21 and we cannot safely bring jurors into courthouses on a large scale basis? (There goes our chief Judge reaching for her Maalox again because of us. Sorry). 

Lets just say we cannot get back to normal. What do we do? 

We have some thoughts, naturally. 

First: Reexamine our criminal code and prosecution practices and judicial sentencing philosophy. First and foremost the "trial tax" (cue ominous music). Let's start with County Court and misdemeanors. County Judges, you are relevant. Look in the mirror, rinse, repeat. But when the defendant asks for a trial by jury for a first DUI and loses, they DO NOT need to be sentenced to jail. Not when all plea offers for first DUIs are non-jail offers. Ditto for the battery charge, the resisting arrest without violence charge and the Snook out of season charge. People do not need to go to jail for misdemeanors. Period. 

Now Circuit Court and felonies. Take the last sentence and substitute "drug possession" for misdemeanors. People do not need to go to prison for drug possession cases. Or any third degree felony for that matter, That is the low hanging fruit. Now buckle up, because it is going to get rough. 

What do we do with the serious, violent felonies? 

Professional jurors and/or panels of five judges who recommend a sentence along with the verdict. Walk through the REJG any afternoon between 2000-2019 and you will see empty courtrooms and chambers. These judges need something to do! And now we have it- they can be jurors! It will still take six to convict- five jurors,  including retired judges and retired lawyers, and the sitting judge must unanimously agree to convict the defendant. The five jurors in the jury box will then recommend a sentence, no complex guideline calculations needed. "Yes, the defendant is technically guilty of burglary of an occupied structure with an assault. But when the defendant broke into her own home that her husband locked her out of and threw a box of graham crackers at him, the sentence should be a withhold and one year probation."  

We need to start moving cases. Professional jurors can handle more evidence quicker and can come to common sense verdicts and sentences. And how about this? No voir dire! You get three potential panels of Judges. One panel is picked by the blind clerk.  The State can then strike that panel and the second panel is picked by the sight-impaired clerk. The defense then has the final say of panel two or panel three. Takes ten minutes, swear them in and lets start with openings! 

Now just stop before you complain that the world will be deprived of your brilliant voir dire, something that Mr. Markus will tell you  that we do not have in federal court anyway. And let's be honest, most lawyers stink at voir dire. They get so befuddled about reasonable doubt that they start drowning in hypotheticals until the trial judge rescues them. A more ignominious fate we cannot imagine.

Lawyer: Ok, imagine the sun is shining, and you walk outside and see your car is wet. Is it reasonable doubt to assume a rainstorm fell on just your car or someone came by with a hose?

Juror #1 (raises hand): I don't have a car. 

Juror#2 (chimes in): There are no hoses in the jury parking lot. (Other jurors laugh). 

Lawyer: Ok, it's snowing out, right, and you see snow on your driveway and....

Juror #3(raises hand): It hasn't snowed in Miami since 1974. 

Change is the price of survival. We need to change and adapt. We have to move cases through the maw of the justice system conveyor belt. We need to stop slamming defendants who cannot hire Rumpole for trial and lose, and we need to stream-line the process of trials and make sentences reasonable.  

And while we are on our soap-box,  let us finish with this. There is no such thing as deterrence. Period. Deterrence is a big deal in federal court under the 3553 factors. We have spent a life time practicing criminal law and not once has a client sat down and said "I had an opportunity to do some mortgage fraud and I was reading the federal law weekly and saw that Judge so and so gave someone three years for mortgage fraud with a loss of under a million and it was affirmed by the 11th circuit so  I figured I could risk that. If the sentence had been five years  I would not have lied on my mortgage application."

Lawyers, who do not read appellate decisions, commit crimes. So how do we think that some 17 year old kid who grabs a purse or steals an ID and buys an Xbox11 on the web knows the consequences of a crime? Miami is the capitol of medical fraud and has been for 20 years. Doctors have gotten 30 year prison sentences. And more doctors come along and write fake scripts in fake accident cases. The prior sentences on other doctors had no affect on them.  So stop with the deterrence crap. It's meaningless. 

There. 

We said it. 

THREE STEPS FORWARD

 And two steps back....That is the clearest view of humanity's battle against the Covid 19 virus. We will prevail, but as the virus mutates, the battle will be longer and harder than we have admitted to ourselves. 

The two new vaccines, with a third on the way shortly,  are not the end of battle. They are not the beginning of the end.  British Prime Minister Winston Spencer Churchill said in a speech in November 1942 when the British defeated the Germans and General Rommel at El Alamein, that the victory was "not the end. It is not the beginning of the end. It is perhaps the end of the beginning."  Churchill was preparing the British public for a long war. A war he had neither flagged nor failed in believing his small island nation would win. But Churchill knew there were many more difficult days ahead.  England was still standing alone; bloodied, battered, but unbowed. 

Covid 19 is mutating and the mutations are negating some of the advantages of the vaccines. That is the bad news. The good news is that the virus cannot mutate indefinitely. The act of mutations will, in and of itself, burn the virus out. The additional good news is that the vaccines will stop most infections. When a person is not infected by an older strain of the virus, the virus loses a chance to find a host and mutate. When that happens enough, the virus dies. But until then, our enemy survives. The troubling variant, E4A4K, which is emerging in South Africa and Brazil, appears to bind easier to human receptor cells AND eludes the antibodies produced by natural infection or vaccines. 

So we have a long, hard battle ahead of us. And that brings us to the legions of robed readers, wandering empty halls of courthouses, their footsteps echoing off of walls and ceilings that used to absorb the noises of loud objections, thundering cross examinations, quiet and meek pleas for mercy, and bored jurors looking to get out of service. We imagine them staring wistfully at empty jury boxes and quietly humming "When will I see you again?" 

The answer is "not very soon your honor." 

We cannot and should not be opening the state courthouses in March when the CDC is predicting that the new and more virulent virus strains will be the dominant strains in the United States. We should not be opening the federal courthouse for jury trials in April. We need patience. We need  50%, 60%* and beyond of Floridians to have been vaccinated. We need  the R rate way below 1 and we need to see that the number of new infections state wide is less than a hundred a day. Only then, when the virus is on the ropes can we attack and win- the way new Commander Bernard Law Montgomery deceived (Operation Bertram)*  and out manoeuvred General Rommel until the time was right to press the attack (Operation Lightfoot). *

WWI ended at 11am on 11/11. At 10:59 am, US Solider Henry Gunther-bayonet fixed-  attacked a German machine gun emplacement and became the last American solider to die in the war.* No one wants to be the Henry Gunther of Covid when a vaccine and cure is right around the corner. 

* It is generally accepted that a herd immunity of +75% is needed to kill a virus and stop a pandemic. With Covid mutations diminishing the effectiveness of current vaccines, it is postulated that we will need a herd immunity of 85% to end Covid. So lets roll up our sleeves and get jabbed. 

* All warfare is based on deception. Sun Zu, the Art of War. In the weeks leading up to the final battle, the British scattered fake camps, fake tanks, fake ammo dumps with camouflage throughout the dessert in front of the German lines so as to confuse their enemy where they were and where the attack would occur. 

* When General Montgomery ordered the attack, the 24th Australian Brigade shelled the 15th Panzer division for a few minutes. Then, in a brilliant coordinated artillery attack, 1000 guns launched an attacked across a 40 mile front. Then Montgomery sent in four infantry divisions. The soldiers would not trip the anti-tank mines because they were not heavy enough. Artillery supported the infantry as engineers cleared the minefields and the infantry called in the coordinates. Then Montgomery sent a three pronged-pincer  attacked, with the 7th Armoured division and the Free French Brigade attacking the German lines from the South, while on the right flank the 44th 131st Infantry Division and 131st Infantry Brigade pressed the attack. The Germans fought hard and were disciplined. The mine fields were deeper than expected and took more time to clear.  

There is so much more to the second battle of El Almein and perhaps this fall, 78 years after the famous battle, we will write more about it. 

* Gunther's story is fascinating. A few months earlier, after he sent a dispiriting letter home criticizing the war, he was  demoted from sergeant to private as the letter was read by censors and his feelings were reported to his superiors. The demotion crushed him, and he spent the remaining months of the war trying to prove his loyalty. On the morning of November 11, the Germans knew of the pending armistice. It is unknown if Gunther's unit was aware the war was about to end. There are conflicting reports about what the Allies knew. When Gunther charged,  the Germans yelled at waved at him to go back. They fired shots over his head. Undeterred, Gunther continued his charge with his bayonet fixed, eventually forcing the Germans to open up with their machine gun and kill Gunther. 

WHEN WILL I SEE YOU AGAIN?

 Item: The music from the 1970's is the best. Period. We will not entertain any additional motions for rehearing or reconsideration. 

We were listening to Sirius/XM's 70s on 7, as is out wont on Sunday, when we heard the familiar first notes from The Three Degrees "When Will I See You Again?" hit,  and we began to wonder which of our favourite judges in the REGJB are humming that same tune? 

When should trials begin again? (As Judges Soto and Sayfie reach for their shot glasses, as they have had their fill of us on this point,  we press on). 

Initially, March seemed like a good target date. But then the feds screwed up the vaccine distribution. Actually that's not true. The feds had NO plan for vaccine distribution until we got POTUS46 and now they are admirably scrambling to come up with something. They are even scrapping the bottom of the proverbial barrel with the FDA's approval of the use of a special syringe to wring a sixth shot out of the vial of five doses (for which Pfizer, which negotiated a per dose charge with the feds, immediately sought to renegotiate their payments for six doses per vial, not five. What are civil lawyers for if not to get an additional 20% for their client out of a deal?). 

Then the virus mutations became troubling. The virus is now more contagious. Just ask anyone in California. The new and more contagious British strain  may also, as per British PM Johnson, be more than 30% more deadly. President Biden has warned and intoned that our darkest virus days are before us. 

This is no time to say "enough" and ask trial lawyers to emerge from their den of virus hibernation and stand up on their hind legs and wobble into court Ursine-like. 

It is always  darkest before the dawn, and we humbly suggest to our chief judges, state and federal alike, that it is wise to wait just a wee bit more. Let the lawyers and judges and clerks and officers and court reporters and jurors get their two vaccines. We still need to socially distance (best thing about covid-19 is that we can now claim social distancing and never be in close proximity to a black robe again) and wear masks, but once we are jabbed, let's pick six.  That next "not guilty" may well be the sweetest, but aren't they all wonderful? Does not a rose by any other name smell as sweet my dear Montague? 

Until we are all safely jabbed, renew your Netflix (the new HBO Max is great!) , stay home a bit more,  and send us the bill, and enjoy the song. 

(We  will do a little talk up for ya..... That was "Car Wash" coming at ya on WIOD the wonderful isle of dreams. It's a beautiful day in Miami, the Magic City, and at 11:07 in the morning, it's not only 77 degrees going to a high of 80, but it's The Three Degrees and When Will I See You Again? [guaranteed we would have hit the post] ).  

JURY TRIALS SUSPENDED UNTIL MARCH 1

 There is not much more to say.  

CJ Soto suspended jury trials in Miami-Dade County state court until March 1, 2021. 

Stay safe. Wear masks. Practice social distancing. Don't raid the Capitol. Things like that. Common sense. 

THE DISAPPEARING CRIMINAL JURY TRIAL

In the EDNY and SDNY federal criminal jury trials are disappearing. Much is the same around other districts in the nation. 

We don't know the stats, but it seems we try a decent amount here in the SDFL. 

However, as long as congress enacts minimum mandatory prison sentences, puts the almost exclusive power of waiver of those sentences in the hands on inexperienced prosecutors (don't email me with claptrap about safety valve), criminal jury trials will continue to fall. And while this NY Times article quotes several distinguished judges and former judges in New York decrying the disappearance of jury trials, as long as judges impose a trial tax and tolerate prosecutors seeking enhanced sentences based on a defendant having the audacity to exercise their right to trial by jury, this trend will continue. 

See you in court, picking six or twelve. Bring it on.