3rd DCA ROUNDUP

If it's Thursday, (or sometime thereafter) it must be time for our weekly and weakly review of the opinions issued by that monument to justice in Kendall- the 3rd DCA.

Speaking of Justice, we start with a rousing affirmation of a drug trafficking conviction of two Defendants in Lelieve v. State, which stands for the proposition that for  3 judges appointed by Jeb Bush, there is little the state can do wrong at trial, including violating a pre-trial motion in limine, and allowing the prosecution to argue at closing evidence that was not introduced at trial. What's a little problem like arguing for guilt based on evidence that does not exist among republican judges? Not much here.  Throw in the 3rd DCAs view that the trial court properly denied  a motion to continue to allow the defense to subpoena witnesses that just re-entered the jurisdiction,  and you have all the makings of justice 3rd DCA style. 

Here's the problem with that last little issue: if the defendant had pled guilty, the court would have conducted a solemn plea colloquy assuring the defendant that in this wonderful country of ours, which has the greatest legal system known,  if the defendant wanted to subpoena witnesses the attorney for the defendant could do so, and use the power of the court to enforce those subpoenas. 

So as we see it, you can plead guilty and be assured you can subpoena witnesses, but if you go to trial and really want to do it, no dice. Hmm...

What is it about rule 3.850 motions that makes judges go nuts and forget all the case law they are given at those barren and arduous judicial retreats? 

 While not joining our wall of shame, Judge John Schlessinger gets honorable mention in Cury v. State for denying a rule  3  BEFORE the case was decided on appeal. Come on Judge, even PD interns know that the appeal must be final before the rule 3 can be filed. The appeals court straightened Judge S out, and ruled the denial was a denial without prejudice. Good luck Mr. Cury on bringing that rule 3 back before Judge Schlesinger a second time. 

Ah, but Judge Venzer does join our HALL OF SHAME for denying a rule 3 without a hearing and without attaching the portion of the record conclusively proving the defendant is not entitled to relief.  See Wiggins v. State. 

So what have we learned today?  "A rule 3 before appeal will not prevail"; (will one of our robed readers please cut and past that little ditty and email it to Judge Schlessinger in Civil court. Actually if about 10 of you do it, it will really be fun.) 

If you want to subpoena a witness for trial, you can, if you plead guilty. If you really want a trial, then try bringing the argument up somewhere other than that court right next to the FIU campus. 

UPDATE (non legal or REGB related)

The year was 1976, and this tall and gangly rookie pitcher for the Detroit Tigers burst on to the Major League Baseball scene with a complete game 2-1 win. He stalked the mound, talked to the ball, bent down and smoothed the pitcher's mound with his hand, and captured fans around the nation with his genuine love for the game and fun antics. He was Mark "The Bird" Fidrych and he died yesterday at age 54 in an accident. 

The ESPN story is here. 

This was a time and an era when superstar baseball players did not come with their own management and team of trainers. This was a time when a new star player in this most  American of   sports could and did capture  the entire attention of our country. 

Mark Fidrych was everything that was right and great about baseball. His death is a tragic loss for his family. 

YOUR TAX DOLLARS AT WORK.

One of the absolute pleasures of working in the REGJB (warning:  gratuitous and cheap shot at judges coming up)  beyond the absolute pleasure  of working with distinguished, experienced (cough cough) and dedicated jurists, who all sacrificed lucrative legal practices just to serve our community in our time of need,  is the first class way the maintenance crew responds to emergencies. 

To prove out point, here is a picture of a crack crew expertly dealing with an emergency. This will be done and cleaned up by, oh, August. 

We hereby certify that we took the above picture on Monday, April 13, 2009 at approximately

 10: 00 AM. 

Yup. They closed a main thoroughfare down to one lane on the busiest day of the week, and then did nothing. 

See You In Court, using the stairs. 

HE'S LOST THAT LOVIN FEELING

UPDATE:  He kept a pistol under his robes, a mini electric chair on his bench, and once said to me "How high can you count" when I asked him to set a bond for my client. Long time cantankerous Judge Daniel Futch has passed away.  Here is the Sun Sentinel Obit. 

Phil Spector, music producer, member of the rock and roll hall of fame, founder of the "Wall Of Sound" music of the 1960's was found guilty of second degree murder on Monday in Los Angeles. He faces 18 years in prison.   The title links to the NY Times article. 

Meanwhile, in Miami Federal Court, race car driver Helio Castroneves  is still dancin with the Feds as he and his lawyer Roy Black sweat out a jury verdict on tax evasion. If we were the defense attorney, we probably would have tried to avoid getting a verdict during the week of April 15. But what do we know?

And finally, in a move that signals the beginning of drastic changes in US/Cuban relations, President Obama eased restrictions on travel between Cuba and the US. US citizens will now also be able to send as much money as they want to family members on the Island. 

Cuba will change. And change is nearer than you think. As history shows, as that is needed is one crack, and the walls and barbed wire of communist oppression will come tumbling down. Remember you read it here first. 

We've seen a lot of change in this town.  During the riots, we entered the REGJB with National Guard troops standing guard. But nothing will compare to the day the communist regime in Cuba topples down. 

See you in court practicing our Spanish.  As Fredo wondered, "How do you say Banana Daiquiri in Spanish?"

THE DUTY YOU OWE YOUR CLIENT

In light of our favourite federal bloggers stunning win in federal court, and the simultaneous collapse of the career of at least three prosecutors who had their fingers in the case, the question some people are posing is whether there will be repercussions for Mr. Markus in his representation of future clients? Will the prosecutor's office  take this colossal embarrasment  out on his future clients?

Here is the first comment we received:

Here's my question. 
1. Was it a good idea at the end of the day for Markus to do the right thing and go after these prosecutors and make them pay for the wrongs they did?

2. Would another defense attorney have just ignored some of the facts and not make waves?
What I am getting at is, will Markus be a marked man and find it harder to get plea deals at the AUSA office based on such a high profile slam of that very office?
Would another defense lawyer have gone the extra few miles or would they have just look towards the future and not made any waves?
I ponder this question because it speaks volumes for the guts it takes to be a true defendar of the law and what it represents. 
If I was facing federal criminal charges would I now want Markus or is he damaged goods for royaly upsetting the AUSA office like no other could?

Rumpole says:  the answer is simple: an attorney does not owe a duty to future clients. You owe a duty to your current client to do your level best, as Janet Reno would say, and you have an affirmative obligation not to diminish your performance to your client one iota in the belief that may benefit other current clients or future clients. 

Rump
Is it really all
that different in State Court?
D.Sisselman

Rumpole says:  Yes. If for this simple reason- if you recall in the Markus saga, just before trial started he and his co-counsel met with the prosecutors' supervisors to discuss their concerns that the prosecution had taken a personal and vindictive tone. True to the nature of federal bureaucrats, the supervisors did nothing. 

As much as we criticize the current SAO administration, we believe there are enough supervisors left over from the Reno administration who would not tolerate this type of behavior. 

See You In Court. 

WHAT THE BAILOUT HATH WROUGHT

BOOM. BUST. RECESSION. BOOM. BUST. RECESSION. BOOM. BUST. RECESSION. DEPRESSION......BOOM? 

We are not an economist, but apparently it is clear that despite the best efforts of rational economist and republican conservatives, economies move in cycles. 

Now with the prospect of millions of americans losing their jobs, the democrats have stepped into the fray with their hand wringing over the human cost of this latest debacle. And make no mistake- this debacle happened on the watch of conservative republicans.  These "conservatives" were nothing of the sort. No free enterprise capitalists they,  Bush and Cheney and their party were just the same statists as their democratic counter parts, the difference only being in which statist goals they sought. 

The democratic response is our current crisis is  to impose strict government controls over free markets and business.  Two articles in the NY Times today highlight the problems with this approach. 

The first article, entitled Where is Sanjay? deals with the difficulties a 28 year old Indian (India) has with working in the US. He has a work visa, but his wife does not, so he resides in Canada and flies into the US when needed. 

Sanjay happens to be Sanjay Mavinkurve, who as a 28 year old student at Harvard laid the technical  foundation for Facebook.  Now Sanjay works for Google, and flies into Silicon Valley as needed.  Sanjay cannot live in the US because despite his enormous talent, his wife cannot get a visa. So they live in Canada, which has accepted them with open arms. 

This problem actually is a result of the republican conservative statists, who in an attempt to win the votes of the vast uneducated and unwashed masses of religious conservatives, pander to the "americans won world war two so we can do anything" blabbering of high school drop out convenience store clerks  and their fast food server spouses, who go to church on Sundays and tremble at the first sight of immigrant brown skin. ***

Query: What if Bill Gates was, in 1970, named Sanjay, and was from India, and couldn't get a visa? Where would Silicon Valley be today?

When we start rewarding and valuing  intellect and accomplishments, and not nazi-ethnic based valuations of a person, perhaps we will have more jobs and industries. Just how many other Bill Gates or Sanjays can't get visas to live in the US?

The second article in the Times, entitled in part, Big Banks Lose Talent,  deals with the loss of talent at  banking firms, as start up small firms, and foreign banks,  neither of which are constrained on issues of pay because they took taxpayer bailout money, recruit the very best minds on Wall Street. 

Now to the extent small firms move to take up the space left by the collapse of Lehman Brothers, the capitalist system is working. One company failed because of mis-management, and new competitors are vying to win the business and fill the gap. But to the extent our talent is being syphoned off by foreign competitors, who do not answer to outraged congressmen and senators on the issue of pay,  this is bad. 

When we wake up from this malaise in a decade or so, and see half our financial industry in Berlin and London,  just don't start wondering why the unemployment rate in New York can't get below 15%. 

And on the issue of pay, just why should any private company ever answer to anyone on what they pay their employees? (And by private we don't mean some Frankenstein hybrid of a dead company sewn together by public money.)

To put the issue of pay into our legal context- do you think David Markus's client was correct to pay Markus and his legal team over a million dollars to defend him against a coven of vindictive prosecutors?

 Can you imagine if before he was allowed to defend his client, Markus had to justify his fees before some soviet style citizens board, who purported to speak for the conscience of the community in legal matters?

Just look at what is going on around you. 

Doctors, lawyers, engineers, venture capitalists; we're all under attack from the statists for one reason or another. And in a few more years when you need one of us, and cannot privately hire the person of your choice, at least you'll understand why. 

See You In Court with our  well thumbed copy of Atlas Shrugged. 

***I do not mean to denigrate convenience store clerks, or people who work in McDonalds. My point is that if we don't change our way of thinking, and fast, the only job opportunities for people who are less educated will be those types of jobs.  But if we value and encourage entrepreneurs, we might just have more job choices for people. Wouldn't they want the choice of building laptops, or green cars, or IPods, or wind turbines, or solar panels, as well as working in a convenience store or fast food restaurant?

KABOOM!

Judge Gold's full 50 page order, which should be required reading for every prosecutor every year they work in a prosecutor's office, is here. 

Here is a summary of the order:  1) The lead agent lied at the motion to suppress and during the sanctions hearing. 2) The lead prosecutor Cronin lied during the sanctions hearing and acted in a vindictive manner based on one of the defense team beating his butt in a previous case. 3) The supervising prosecutor Gilbert probably lied during the sanctions hearing and did nothing to supervise this case. When she was caught in not turning over Brady material, her explanation was probably a lie. 

4) The US Attorneys office might well have a culture of win at any cost, and when caught, they lie. As a Judge this bothers me. 

That is the sum and substance of 50 pages containing details of lie after lie. It is just shocking what went on here. 

Here is the DBR article:

Judge orders U.S. to pay more than $600k in legal fees for misconduct

April 09, 2009 By: John Pacenti

A federal judge today ordered the U.S. government to pay more than
$601,000 in legal fees and costs for secretly taping the defense team
for a Miami Beach physician who was prosecuted and acquitted by a jury
for illegally prescribing narcotics.


U.S. District Judge Alan S. Gold of Miami entered a public reprimand
against U.S. Attorney Alex Acosta and his senior staff members for
failing to properly supervise the trial attorneys, Sean Cronin and
Andrea Hoffman, as well as their supervisor, Karen Gilbert.

The judge reprimanded the two trial prosecutors, saying that along with
Drug Enforcement Administration agent Christopher Wells, they "acted
vexatiously and in bad faith" in prosecuting Dr. Ali Shaygan. Also
reprimanded was assistant U.S. Attorney Karen Gilbert, the narcotics
section chief.

Gold called the secret taping of phone calls to Shaygan's attorney and
defense investigator by two informants was "profoundly disturbing." He
raised the specter of the recent dismissal of a conviction against
former U.S. Sen. Ted Stevens, R-Alaska, because prosecutors in that case
withheld key evidence.

The $601,795 covers court fees and lawyer costs dating from a
superseding indictment filed by prosecutors in September.

"The order speaks for itself. We regret that any of this ever happened
in the first place but we are grateful that Judge Gold took it seriously
and did the right thing," said Miami criminal defense attorney David O.
Markus, the lead counsel for Shaygan. "Thank goodness that the conduct
did not distract the jury from finding Dr. Shaygan not guilty of all 141
counts against him.

Miami attorneys Marc Seitles and Robin Kaplan served as co-counsels for
the defense.

In his order, Judge Gold acknowledged that the U.S. Attorney's office
admitted its mistakes and that Acosta referred the matter for
investigation by the Department of Justice Office of Professional
Responsibility. Gold concluded Acosta was not aware of the secret taping
of phone calls on what turned out to be a specious allegation of witness
tampering by the defense.

In a statement, the U.S. attorney's office in Miami reiterated that it
regrets the mishap and has taken action to ensure it does not happen
again. Alicia Valle, spokeswoman for the office, said from the start
Shaygan was offered compensation "even though it was our belief that
these mistakes were not intentional."

"Our attorneys are lifelong public servants who are committed to the
pursuit of justice," Valle said. "One event should not taint the nearly
300 hard working attorneys in the Southern District of Florida."

Even before Gold issued his order, Gilbert, the office's top narcotics
prosecutor, requested reassignment. Cronin was reassigned out of the
criminal division.

Gold said he could issue further sanctions depending on the outcome of
the internal investigation by the Justice Department. He said Cronin had
allowed his personal feelings to affect the case against Shaygan.

Cronin told the defense that there would be "seismic shift" in the case
if Shaygan pursued a motion to suppress a statement he made to Wells.
After the defense filed its motion, Cronin filed 100 more counts against
the doctor.

"The various deficiencies in Cronin's conduct constitute unethical
behavior not befitting the role of a prosecutor," Gold wrote.

The judge said he plans to forward his 50-page order to The Florida Bar
and request that it take appropriate disciplinary action against Cronin,
Hoffman and Gilbert.

John Pacenti
Federal Courts Reporter
Daily Business Review

3rd DCA ROUNDUP

After a brief pause, we return with relish to our examination of the the cases that make us tick. 

In Mathis v. State, Judge Ramirez, who's getting better and better as he gets older, puts the legal kibosh on Judge Areces's denial of a motion to suppress. In Mathis, the court held that an informant's tip that describes where an individual is selling drugs, and what that individual looks like, but does not contain how the informant knows the individual is actually selling drugs, (meaning the tip does does fully describe the manner of selling drugs, and what drugs are being sold) is not sufficient to provide an officer probable cause to stop and search. 

PD's office 1-Areces 0. 

In KH v. State, the court found the evidence was legally insufficient to justify a conviction for battery on a police officer. In KH, officer "Friendly" saw KH looking into the window of a truck. The officer went to investigate at the precise moment KH decided it was time for his afternoon run. KH ran, the officer grabbed him, and KH gave him a shove. The 3rd DCA held that since the evidence was legally insufficient for a loitering and prowling charge, the officer was not acting in lawful performance of his duties, and as such the conviction for battery on a LEO cannot stand. The case was remanded for a reduction of charges to simple battery.  

PD's office 2- AG's 0.     

Kudos to Judge Tunis for reading the blog and attaching reasons to her denial of the defendant's rule 3.850. As such, Judge Rothenberg affirmed the denial with pleasure in Ross v State. Now, see how easy that was?   

But not for Judge Marisa Tinkler Mendez, who makes a repeat appearance on the wall of shame for not attaching portions of the record in the denial of the rule 3 motion in State v. Mattison. 

 Judge Orlando Prescott joins Tinkler-Mendez on the wall of shame for the same reasons in Kerr v. State. 

Judges Tinkler-Mendez and Prescott:  call Judge Tunis, she knows how it's done. 

And finally, in Sabnani v. State, the 3rd DCA reluctantly reversed Judge Scola. In Sabnani, the Defendant averred that his plea should be vacated because he was not warned of immigration consequences. A transcript of the plea could not be located, but the state did find a transcript of a subsequent PVH plea in which the Defendant was warned of the immigration consequences. On that basis Judge Scola denied the motion to withdraw the plea. However, the 3rd DCA has recently held that the existence of an independent warning in a subsequent hearing does not cure the original and defective plea.  

Well that wraps up another edition of Paul and Young Ron's "You Can't Win"....woops..we mean 3rd DCA Roundup. 

A DAY OF SHAME FOR ....

Judge Aleman. She was reprimanded by the Florida Supreme Court today. Having a bad day? Need a "pick me up?" Read the transcript of the reprimand here.

Here's a highlight:

Judges are not and must never become adversaries of
any attorney appearing before them, especially in
first-degree murder cases where a person’s life is at
stake.

All of us who sit on the bench are subject to
criticism, including recusal requests that may be
highly unflattering to us.

Nevertheless, we still must be fair, courteous, and
impartial when responding to such requests. 

Rumpole wonders:  We now know that judges are required to be "fair, courteous, and impartial" when we move to have them recused. What about the rest of time? Ba dum dum. 

And a day of shame for the DOJ as well:

The case against former Senator Ted Stevens was officially dismissed today as the Judge blasted the Department Of Justice and appointed a special prosecutor to investigate the investigators. 

The title of the post links to the NY TImes article.

Here's how bad things are- the FBI agent who spilled the beans on the meetings with the prosecution team during which the lawyers intentionally and continually failed to disclose Brady material, has asked for Government "whistle blower" protection. 

And former senator Stevens joins that lengthy list of proud public servants who spent a life time extolling the virtues of the great american legal system, only to learn the dirty little secret that it usually doesn't work. 

THE MASTERS. 

Thursday starts one of our favourite times of the year, as the Masters gets underway in Augusta, Georgia. You won't find us at work Thursday or Friday. No sir. We take the rest of the week off, cool off a case of beer, and spend four days at home watching golf. Fun fun fun. 

WHERE IN THE WORLD WUZ RUMPOLE?

Those of you who correctly identified the fuzzy picture of the late Judge Manny Crespo which now hangs in Judge Pinero's courtroom were correct. Kudos to Judge P for hanging a picture of  his dear friend and a true Justice Building gentleman and legend. 

Now we throw you a curve ball with this one:

See you in court, where this time of year we're apt to wear our green blazer. 

WHERE IS....

Rumpole?

WHERE IS JOHN GALT?

Those of you who have read Ayn Rand's magnum opus, Atlas Shrugged, know that today many of the state sponsored attacks on capitalism that Rand wrote about almost 60 years ago, are now coming true. 

Those who are committed Objectivists (Rand's name for her philosophy) are horrified by the government's usurpation of private industry and private capital in the name of altruistic collectivism. 

" Who is John Galt?" is the phrase repeated with mind-numbing regularity by the depressed and downtrodden in Rand's book. They say the phrase without knowing what it means or implies.    In Atlas Shrugged,  Galt leads a strike of capitalists against the government's intrusion into private industry. Rather than give in and give up (Can you say "Rick Wagoner?") the leaders and producers of industry just disappear. Without them, society collapses. 

So where are the industrialists and capitalists rebelling against the government's unprecedented entry into private business? 

Today, rather than fighting collectivism, so called business leaders like Rick Wagoner, formerly of GM, and formerly a man, merely yelp "how high?" when President Obama says "jump". 

Dr. Jack Wheeler, a leading capitalist philosopher who supports concepts like rational self interest, has written that the question today is not "who is John Galt?" but "where is John Galt?" 

Wheeler writes:

" Today, the fascist nightmare that is destroying America is hideously similar to that described by Rand over fifty years ago. But if we ask today, not who is John Galt but where is John Galt, the question echoes in the wind with no answer."

The answer is that John Galt is inside of us.

Wheeler concludes:

"You and each of us have the capacity to summon the courage within ourselves to fight government enslavement and tyranny—just as did our forefathers. ..

Thus true patriotism begins with you. It begins with all of us. Ayn Rand was a monumental genius. She saw clearly the consequences of fascist anti-capitalist liberalism in the halcyon days of the 1950s. We are now in 2009 living in the world of Atlas Shrugged—but without John Galt. Unless each of us takes responsibility for our own fate and chooses to be our own John Galt. Look inside yourself. That’s where you’ll find him."

Rumpole says: 

We didn't sign up for living in Beijing, or Moscow, or Havana. But that's where we're ending up. Government subsidies and government sponsorship didn't create DOS, or the hard drive, or the Intel micro-processor, or the IPOD or the I-Phone, so what makes us think that government ownership of banks will make things better or that government ownership of GM and Chrysler will create a profitable generation of green powered vehicles? 

Businesses succeed or fail based on the market and their owner's ability to meet the demands of the market.  It's a zero sum game.  Like a jury trial. You make a profit or not. You win or you lose. 

Or in 2009 you lose, then you lose some more; then you cry that the world can't live without your product;  then you get a few billon dollars in tax money that I never agreed to give; then you do what your masters in Washington tell you to do. 

Ahh.....what's the use?  Who is John Galt?

PD PRANK

This was the sum and substance of a April first email originating in the PDs office detailing a new program. A few separate sources forwarded to us the email and we ALMOST fell for it and ALMOST printed the following:

PD KEYSTONE KOPS vs. METRO DADE HOMICIDE

What two separate sources have told us is that in response to the belief that Metro Dade Homicide does not honor a suspect's request for an attorney,  the PDs office intends to station Public Defenders outside of the MDPD and follow homicide officers to the scene of homicides and thus be readily available if suspects request counsel. 

Sounds almost like something we should have published on April Fool's day. 

Rumpole says: Glad to know spirits are high on 14th Street. If this email was sent at the SAO we'd be doing a piece on a prosecutor being fired. One office is run through a pervasive atmosphere of fear, and one is not. 

MIRANDA: 

In thinking about the Miranda rights recently, it occurred to us (and we wrote about it in the comments section on Sunday) that we have never heard of the police calling the PD's office to request an attorney to a crime scene to speak with a suspect who asked for counsel. Never.  

 From time to time we have private clients who are expecting to be arrested and have been informed to call us immediately. In those circumstances the police SOMETIMES allow them to make the call before trying to get a Miranda Waiver.  Other times they pull some stunt, usually talking between themselves that if the person would just speak with them perhaps they would not have to arrest them, but if they called a lawyer their sergeant would make them follow through on the arrest.   

But our larger point is that Miranda isn't working because the police do not scrupulously ensure that a suspect's 5th amendment's rights are being protected, EXCEPT- in one special case. When there is a police shooting,  then the officer has PBA counsel brought to the scene as soon as possible, and a formal statement is NEVER taken without the officer first conferring with their counsel, and with their counsel being present at the statement, which in our experience in this town, can often be several days later.  

It seems the police do know how to honor the Fifth Amendment when it suits their purpose. 

See you in court, filing motions to suppress. 

PS : Today is opening day in baseball. As John Fogerty sang in Centerfield:

Just to hit the ball and touch em all

a moment in the sun

it's gone and you can tell that one goodbye. 

FUN WITH TEMPERATURES:

Today the high will be a record 93. 

By tomorrow it will be 73

By Wednesday it will be a record 50.

From the frying pan into the freezer. 

GOOBYE MIRANDA

Goodbye Miranda. It was nice knowing you. You tried. But you just weren't up to the task. 

Police officers routinely walked around you. They said they read your rights when they didn't; or before reading your rights they made some implicit threats. It was all done during the pre-interview, when nothing was taped or recorded-and anything goes-

and usually did. 

And along the way, boy did you get some bad press. Just about any two-bit crime Hollywood movie or TV movie of the week usually started with a monster of a criminal being released from prison because some befuddled officer forgot to read you. Those of us who practiced law knew that wasn't the law, but that didn't stop you from being portrayed as some society destroying monster bent on releasing everyone from prison. 

And now, the end is near. Read on McDuff:

In State v. Powell, (clink on the link for the case) the Florida Supreme Court held that full and complete Miranda warnings were needed before a confession was admissible. The court disapproved of a pared down "economic version" of the rights.  

"You're under arrest. You probably will never see your family or the light of day again unless you speak with us. By the way you can have a two-bit piece of crap lawyer here, but all he wants to do is have your family mortgage your home to hire him. You want that? Or do you want a chance to speak with us and save your miserable butt?"

That version, or some reasonable facsimile, was disapproved of by the Florida Supreme Court. 

Quick legal quiz: Which distinguished Justice of the US Supreme Court sits as the designated judge for our Circuit. 

Right!!!

And this past Thursday Justice Thomas put the decision of Powell on hold while the court considers this petition to review Powell, and  by implication, the scope of Miranda. 

And that will be that. Maybe not today, and maybe not tomorrow, but soon, and forever after (thanks to Rick in Casablanca for the rhythm  of that last sentence.)

Miranda barely works now. Any homicide cop can and does wiggle around it. And if the Supreme Court approves a watered down version of Miranda, the last vestiges of the Fifth amendment's protections against self incrimination will go out the door and into the cold night of a criminal justice system ruled by the police. 

And that's the way most people want it......until the police come for them. 

Police officers routinely threaten, berate, trick, scare, and even use physical violence to obtain statements. And judges who are elected and are sensitive to the Hollywood portrayal of Miranda are loathe to risk appearing on the front page of the Herald under this headline "Judge Tosses confession in child murder case!!!!" regardless of the circumstances of the statement. 

Query: In a day and age when the availability to digitally record a police officer's full encounter with a suspect (from arrest, to pre-statement, to confession) is as easy as turning on a cell phone and pressing "record", why do police departments and prosecutors resist guidelines that would call for recording all police interactions with a suspect?

Because of this- in a murder case we defended, our client,  after being brought back to the scene to recount the circumstances of the murder, grabbed the microphone and there was a scuffle. The microphone when then turned off. But we got the recording, and we got it enhanced- and this is what our client said " Client: "I want to make sure your promise not to arrest me is on tape."  Detective: "Turn that damed thing off."

Goodbye Miranda. It was nice knowing you. You tried. 

See you in court. 

Ps. Don't bother looking around for that case. It happened out of state. A courageous Judge granted the motion to suppress.

BARRY HALPERN HAS PASSED AWAY

Long time REGJB regular attorney Jack Blumenfeld was good enough to notify us that  attorney Barry Halpern, who practiced criminal defense in the Justice Building for many decades, has passed away. 

There is a service for Barry Halpern Friday  at 12 noon at

Riverside Gordon at Aventura
20955 Biscayne Blvd.
Aventura, FL 33180
305 935 3939

A road without obstacles is a road not worth taking.

COVERUPS

Now that we are done with our April fools ballyhoo, we can move on to more serious events. 

Cleveland Browns wide receiver Donte Stallworth was charged by arrest warrant with DUI manslaughter and DUI. His blood alcohol level was reported to be .126, and .08 is the legal limit, even in South Beach. Chris Lyons and Dan Lurvey for the defense. 

Speaking of DUI, here's the link to the rocket scientist arrested for DUI while driving his homemade "bar stool" scooter. Kile Wygle, the defendant,  is why most of us have more job security than the average american. 

And speaking of rocket scientists, here's the NY Times link to the article in which the conviction of then Senator Ted Stevens was vacated and dismissed because the prosecutors didn't turn over exculpatory notes of interviews with witnesses. 

It turns out the prosecution's star witness told them he did about 80 bucks of work on Steven's home, instead of the 80 billion he testified to. And what were our bastions of truth and justice doing while their witness gave false testimony? The prosecutors just sat there with those blank faces the DOJ requires them to wear when they are listening to perjury. They didn't tell the defense, they didn't turn over their exculpatory notes, they didn't tell the court-they did nothing. 

And now they lost their case, their conviction, and most likely their careers. 

There's a lesson out there for all you new prosecutors. 

When you have a big case.

And your witness lies. 

And you know about. 

Remember what brought Nixon down, and for goodness sakes destroy the notes/tapes/exculpatory evidence, before you get caught. 

And speaking of coverups, here's the Herald article earlier in the week on the 2004 police shooting case that ASA Ranck was removed from. Memo to State Attorney Fernandle- it's been five years, do something....anything. Just come back from vacation for a few hours and make a decision. 

See You in Court.     

Exclusive: 

take the DOJ prosecutor's hiring quiz: 

So You Wanna be an AUSA?: (Excerpts printed without permission of the DOJ)    

Q 16) Ethics:  Your witness tells you that the defense attorney has contacted him and offered him money to change his testimony. You should A)Immediately tape all phone calls of the defense attorney; B) Immediately indict the defense attorney and seize all his files; C) Proceed cautiously and notify your superior and attempt to obtain an independent source who can verify the allegations.   

Q 22- Trial Tactics: 

In a high profile prosecution, you sit and watch while your star witness exaggerates his testimony, in contradiction of what he previously told you. You should:  A) Sit quietly. After all, it's up to the jury and not you. (answer approved by Mike Satz, Broward State Attorney.) B) Destroy your notes and disavow any knowledge of the perjury; C) Immediately turn over your notes to the defense, and request a short delay in the case while you review your options with your supervisor.    

If you answered "C" to any question, the Department of Justice appreciates your interest in working for us, but recommends you consider other interesting and exciting careers like National Park Ranger.   If you answered A or B, or better,  "both A and B", then you're the type of guy or gal we're looking for. 

April 1 Confker Worm Special Edition

Today is April 1.  Has the Confiker worm hit you?

NEW 24 Hour Court to debut:

For years we have complained about the long lines in the REGJB, especially on Mondays and Tuesdays where court is closed on Monday. 

In response to our complaints, and to be filed under the heading "be careful what you wish for",  the Judges of the REGJB are set to debut the new 24 Hour Court!!!

Yes, in an order to be signed by the chief judges of country and criminal court today, there will be established a new 24 hour court open 24 hours a day, seven days a week, to handle all emergency hearings, and for those who opt for it, traffic tickets and non-DUI misdemeanors. 

The police officers who work midnight shifts have lobbied for this for years, as it would allow them to appear in court during their normal working hours. Defendants will have the choice to check a box on a ticket, traffic infraction, or promise to appear, that will authorize the clerk to set the case for arraignment, sounding, and trial, between either the hours of 6PM and midnight or for those night rangers, 12 am and 6 am. 

"The lawyers will just have to deal with it" said the spokesperson for the 11th Judicial Circuit. "The world does not revolve around them and it's time they realized that."

Query: How will you handle a case set for trial at 2am Friday morning?

FEDERAL DEATH RECOMMENDATION: 

For those of you following the trial, the Federal Jury in the West Palm Beach case involving the execution of a family of four on the Florida turnpike, has recommended death for both defendants. Judge Hurley has the case and he heads into senior status having to make a life and death decision. The Channel 7 recap is here. 

See you in court, but only between 8Am and 5Pm.

ABE LAESER RETIRES

From Abe Laeser
Shalom

I was sworn in as an Assistant State Attorney on May 2nd, 1973. It was the day after I had become a member of the Florida Bar. No other job ever seriously tempted me to leave. What I am can be found in the immortal words of Paul Simon, when he sang of the One Trick Pony: "He's just a one trick pony (that's all he is),
But he turns that trick with pride."

Prosecution has been by vocation, my avocation, and my true love for nearly 36 years. I leave this, my home, with the greatest of regret - even sorrow. As Thomas Carlyle once wrote, as if he were writing only for me: "Blessed is he who has found his work; let him ask no other blessedness." My friends, my colleagues, my compatriots in battles too numerous to mention -- all these will forever have a place in my heart.

Many have asked me about a most memorable moment. There have been many extremely similar moments that I have taken most to heart. I have had one single request - one that mercifully I have never had to carry out; yet it meant the world to me, because it spoke truth in its loudest possible voice. Fellow prosecutors, officers, defense attorneys, and even judges had made one request. The gist of it was: "If my family member should ever be murdered, could you personally prosecute the case?" This is perhaps the only legacy that will stay in my mind forever. It means too much for me to ever forget.

G-d bless you all with wisdom and courage in this special calling, as prosecutors.

SHALOM.

Rumpole says: The above missive was an email Mr. Laeser sent to all the prosecutors at the SAO as he leaves after 36 years of dedicated service to this community. We reprint it with his permission. 

Mr. Laeser, (Abe to many) needs no introduction to the majority of people who read this blog. Chief of Major crimes when the SAO had a Major Crimes unit, he was THE prosecutor that the community turned to when the worst of tragedies struck- when a law enforcement officer was killed in the line of duty.  Along the way, as many have written, Mr. Laeser trained hundreds of prosecutors in how to investigate and prepare a case; how to do it exceptionally well; and how to do it ethically and honestly.  We really are not the one to recount all that Mr. Laeser has meant to the SAO and Miami.  Already one judge has posted a comment and we encourage all lawyers and Judges to do the same. 

We leave you with this link to a blog post The Case That Made Miami Burn, and Roy Black's recollections of doing battle with the best the Miami SAO had. 

Roy ended his comment with this:

"You know if you have tried a case against Abe Laeser you have met their best lawyer."

Rumpole says: It's worth reading what Abe Laeser had to say about trying the Alvarez case against Roy Black. Because he called it "my best case and worst loss."

And what does that mean? To us it means there is value in trying your best, no matter what the odds, and accepting the results. As we teach lawyers from time to time, rather than being bitter about the loss (blaming the judge or the jury or the client or a witness) embrace the loss and learn everything you can from it.  By doing that you will realize that losing a case is the most valuable lesson a trial lawyer can have, and it will- as Mr. Laeser has shown- make losses in the future extremely rare events. 

G-dspeed Mr. Laeser. 

NEW JUVENILE COURTHOUSE

Update: considering the comments, nobody cares about the new juvenile court. 

The Herald reports the approval by the Miami City Commission to build a  "new...bright, modern, safe...welcoming...and green" Juvenile Justice Courthouse downtown.  The title of the post links to the article. 

Rumpole notes: About time, but can the colour be something other than green??

The current juvenile courthouse, which we've been to about three times in twenty plus years, is a disgrace. 

Here's the real question: can the state beat the Feds and build a new courthouse in less time than it took the feds to build that new monstrosity which is still barely functioning? The bar is pretty low on this one. 

Here's a recap of the collateral estoppel argument before the SCOTUS in  Yeager  v. US. Basically, there was a mixed verdict with acquittals on some counts and a hung jury on other counts, and the government wants to re-try the defendants and punish them for not pleading guilty earlier in violation of the recently enacted "Cheney laws." 

Sorry for the lite post, but I'm a bit busy, but unlike certain federal bloggers, I can multi-task. 

See you in court. 

PDS GET HELP

Item: New Public Defender Carlos Martinez  (Motto: "Proudly running the Dade County Public Defenders Office with help from Bennett Brummer since January 2009") has solicited the pro bono assistance of big firm civil lawyers for public defender cases. Martinez promises real trial experience in exchange for getting much needed help for clients. 

We received this comment and it is dead on and very funny:

Anonymous said:

Pro bono civil lawyer doing misdemeanor case list of things to do:

1. Send threatening demand letter to prosecutor about "ending up in court" and asking for fees upon conclusion of case.

2. Set depositions without filing a motion.

3. Go to court and walk into judge's chambers for hearing. Look for sign in sheet.

4. Follow up threatening letter with interrogatories.

5. Advise prosecutor that the depo of your client will be in your office.

Anything else?

OBAMA AND THE CONTRACT CLAUSE

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility

U.S. CONST. ART. 1, SECT 10.

In Ogden v. Saunders, 12 Wheat, 25 U.S. 213 (1827), Chief Justice John Marshal wrote in dissent on what drove the framers to write the contracts clause into the Constitution: 

The power of changing the relative situation of debtor and creditor, of interfering with contracts, a power which comes home to every man, touches the interest of all, and controls the conduct of every individual in those things which he supposes to be proper for his own exclusive management, had been used to such an excess by the state legislatures, as to break in upon the ordinary intercourse of society, and destroy all confidence between man and man. This mischief had become so great, so alarming, as not only to impair commercial intercourse and threaten the existence of credit, but to sap the morals of the people and destroy the sanctity of private faith. To guard against the continuance of the evil was an object of deep interest with all the truly wise, as well as the virtuous, of this great community, and was one of the important benefits expected from a reform of the government.

That the public bloodlust to terminate the contracts  between individuals and AIG has reached into the upper most echelon of the White House is not surprising. 

And unfortunately, as altrutist- statists are wont to do, anything and everything is up for grabs when THERE IS AN EMERGENCY. 

The clearest indication of this is the Supreme Court's holding in Home Building and Loan Assoc.  v. Blaisdell, 290 U.S. 398 (1934) in which the Supreme Court held that:

The economic interests of the State may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts.

Let us interpret that for you: Contracts are contracts, and the Constitution is the Constitution, and the Constitution forbids state interference with contracts, unless the interests of the state are overriding.  

In other words, the Constitution of the United States is not worth the paper it is written on when powerful economic interests or emergencies arise. 

Thus in Blaisdell, the court found that  1) "an emergency" existed in Minnesota.  2) The laws enacted (the suspension of the right of a creditor to foreclose on a mortgage)  addressed "a legitimate interest of society" (Altruistic collectivism).  3) The relief afforded by the law was justified by the emergency and thus the state acted properly. (Statism). 

Blaisdell has been roundly and justifiably criticized, but it is still good law. 

So is Wickard v. Filburn,  317 U.S. 111 (1942) holding a farmer could not eat the wheat he grew, and that the Federal Government had the right to say so under the commerce clause, especially when there is an ....(everybody now) EMERGENCY!!!

And that is very bad news for those people who are legitimately owed money during this emergency. That means AIG employees, real estate investors, and anyone else Obama and the Congress decide this emergency covers. And that may mean you someday.  

Let's say Florida decided there was "an emergency" and suspended payments on pensions.  For all of you who just spent the last 30 years in the REGJB and were expecting a decent retirement- ouch!

But Florida could do it. The Blaisdell opinion says so. 

So sit back and hold on to your wallets because the altruist-collectivist-statists are out in force and everything is up for grabs. 

See You in court reading old Supreme Court decisions.