TECHNICAL DIFFICULTIES

Several long time readers have emailed us that they are experiencing difficulties when viewing the blog. The problem -we think- is that Google is going out of their way not to play nice with browsers by companies they don't like. For instance Google has now made it nearly impossible for us to view pending comments with our IPhone. 

Please let us know if you are experiencing difficulties. In the meantime you can try clearing the history and cache on your internet browser on a regular basis and that should help. 

ANONYMOUS JURORS? 
David Ovalle is one of many media members reporting that the Judge in the George Zimmerman trial is considering keeping the names of jurors anonymous for six months after the conclusion of the trial. 
Scott Ponce of Holland and Knight was up in Sandford on behalf of the Herald arguing against the Judge's decision. Ponce does a lot of the media motions in Florida. 

YOU HAVE THE RIGHT TO REMAIN SILENT....except when you don't. 
In Salinas v. Texas, the Supreme Court held yesterday that silence during a "pre-custodial" interrogation is admissible as evidence of guilt. Justice Scalia, DOM's great friend to the defense joined Justice Thomas in concurring in the result, giving the plurality opinion of Roberts, Alito and Kennedy the gravitas of law. 

In this "up is down, down is up" world of jurisprudence, in order to invoke the protections of the Fifth Amendment, including the right to remain silent, you must speak up:

Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self- incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self- executing” and that a witness who desires its protection “ ‘must claim it.’ ...Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed.


 Justices Breyer, Ginsburg, Kagan and Sotomayor fought the good fight against the evil empire. 
So remember to advise your clients: in order to remain silent....SPEAK UP. 

See You In Court. 

BITE ME

BREAKING: Chad Johnson, who has been jailed since last week for patting his lawyer's butt in court for doing a good job has been released after telling the Broward Judge that he was sorry and did not mean any disrespect. So the Broward Judge got her pound of flesh. Happy? 

The AP writes what we in the criminal defense field have known for some time: Bite mark identification is unreliable (witch craft) nonsense (sorry Dr. Souviron). The article is here.
Bite mark identification evidence first came into the popular conscience with the prosecution of Ted Bundy in Miami and the testimony of Coral Gables Dentist Dr. Richard Souviron:

Bite mark analysis hit the big time at Bundy's 1979 Florida trial.

Read more here: http://www.miamiherald.com/2013/06/16/3454249_p2/ap-impact-bites-derided-as-unreliable.html#storylink=cpy

On the night Bundy went on a killing spree that left two young women dead and three others seriously wounded, he savagely bit one of the murder victims, Lisa Levy. A Florida forensic dentist, Dr. Richard Souviron, testified at Bundy's murder trial that his unusual, mangled teeth were a match.

Bundy was found guilty and executed. The bite marks were considered the key piece of physical evidence against him...

Then came DNA testing. Beginning in the early 2000s, new evidence set free men serving prison time or awaiting the death penalty largely because of bite mark testimony that later proved faulty.

We The Journalists:

Ever wonder who that guy in the USC shirt, huddled in the back of Judge Thomas's courtroom sipping black coffee and using the wi-fi is? 

Why it's ace Herald crime reporter David Ovalle, and the Society Of Professional Journalists ("going to jail to protect sources since 1972") did an article on our own REGJB crime reporter here. 

David likes black coffee, golf, California, and long walks on the beach. 

BOT: BOT is a DUI diversion program for first offenders. It was started in Orlando, and has since spread to Miami Dade, and now West Palm Beach. One guess which county isn't even considering it? Hint: about 27 miles north of the REGJB. 

Another long hot week in a long hot summer. Stay cool and we'll See You In Court.

Read more here: http://www.miamiherald.com/2013/06/16/3454249_p2/ap-impact-bites-derided-as-unreliable.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/06/16/3454249_p2/ap-impact-bites-derided-as-unreliable.html#storylink=cpy

BIG NEWS

By now the Justice Building Football Suicide League is a tradition.   Last year saw a record number of players complete for a title so prized, the mere thought of possessing it is enough to make contestants pour over football schedules for months in advance, searching for the slightest edge. 

Now: BIG NEWS. 

You've talked about it for years. The mere possibility that such a thing would exist has sent football loving blog readers into a frenzy.  The possibility has now become a reality. 

We are ready to announce, in addition to the beloved suicide pool......

Wait. 
We almost forgot. 

HAPPY FATHER'S DAY. 

To all our readers who balance a legal career with the most important job in their life: being a dad, today we salute you. 

It's your job to take your son or daughter fishing.  Show them how to bait a hook, and teach them about catch and release. It's your job to oil their first baseball mitt, and to put an arm around them when they strike out to end the game. It's your job to buy them those comic books you read when you were a kid; to sneak them out of the house for an ice cream sundae before dinner, and to talk them about putting down the Ipad, turning off the TV  and reading a book at night. 

For the ten thousand and one things you will do to make a difference in your child's life: from going to the pharmacy at 3am to buy some more cough medicine, to driving their pals to and from the movies, with a stop at McDonalds on the way home, to the countless times you re-arranged your work schedule so you get to the baseball field or basketball court to coach the team, this is your day. 

Enjoy it. 
Happy Father's Day. 

Our pick to win the US Open? Charl Schwartzel. Who are we rooting for? Our favourite golfer since the Golden Bear. Lefty. Phil Mickelson. 

Oh, as to that big announcement? It can wait. Can't overshadow Father's Day you know. 

DISCOVERY QUIZ

We'll end the week with a little discovery refresher. 
Scenario: You are hired to represent a defendant on a DUI Manslaughter case. You invoke discovery. Which rule have you invoked? A) 3.220  B) 3.xyz C) The Rule against perpetuities.  (Answer below) *

Having invoked reciprocal discovery, you see that there was a blood sample taken from your client. You retain an ex parte expert, ask for some of the blood sample and your expert conducts tests. 

The state:  A) Quickly files a motion to compel the report of your expert; B) admires your hard work and shakes your hand after court; C) Asks whether your firm is hiring. 

Lets assume the answer is A and the court grants the motion and you quickly file a writ of certiorari with the appellate court. The Appellate court A) Denies the writ and writes that when you invoke reciprocal discovery the report of your private experts must be disclosed; B) Laughs at the circuit court and quickly grants the writ and requires the circuit judge to show cause that  s/he has graduated from an accredited law school; C) Discretely inquires during oral argument whether your firm is hiring. 
As astounding as it sounds, and this is a warning bell to us as defense attorneys, the answer is A. 




The reasoning behind the decision is as follows: 
3.220(1)(A) requires the defense to disclose to the prosecution the witnesses who the defense reasonably expects to call at trial. 
3.220(1)(B)(ii) requires the defense to disclose to the prosecution the names of experts and the results of tests. 
Note that the section on experts is separate and distinct from the section that requires the disclosure of witnesses that the defense "reasonably expects to call" and the plain language of the rule doesn't exempt experts that the defense uses but doesn't expect to call. 

The opinion recognizes the Hobson's choice the decision will create for defendants- if you want to use experts to conduct tests, don't invoke reciprocal discovery. The appellate court's response is "tough toenails". And just so you get prepared, here is the quote the state will use in their motions to compel, over and over:

"Ms. Kidder is not constitutionally entitled to a discovery system that operates only to [her] benefit."

Suddenly arraignments became a little more dicey. Now you have some strategic decisions to make. 

Enjoy your U.S. Open weekend and happy father's day. 

See You In Court. 

*If you have to check that the answer is A, it's high time for some CLE. 

MILT HIRSCH, LESLIE ROTHENBERG, AND THE TAPES

Lesson one of legal blogging in Miami: Put Milt Hirsch in a post and the hits on the blog go through the roof.
 
Last we left Milt Hirsch, Miami's own "Bard of the Bench" he  was safely ensconced in his robes. There was just the nagging issue of his former client Sean Casey. To make a very long story short, Casey was charged with DUI Manslaughter. Milt did a spectacular job and got the blood tests suppressed. The 3rd DCA (in what should have been recognized as a precursor of things to come) reversed the trial judge's order. The case was returned for trial and Mr. Casey fled to Chile where he resided for two years until he was apprehended. Upon return to Miami, Casey, with Hirsch as his counsel, entered a plea and was sentenced to prison.
 
Casey filed a post conviction motion to set aside his plea. His main contention was that Hirsch and his therapist (recommended by Hirsch- Dr. Michael Rappaport) advised him to flee once the 3rd DCA reversed the suppression of evidence. Prior to fleeing, Casey and his mother surreptitiously taped Hirsch and Rappaport. "The Hirsch Tapes" as they came to be known, ended up in the possession of the SAO (motto: "The tapes are none of your ^%@!$!$~! business"). David S Markus (NOT the blogger) represented Casey on the motion. The court, at the request of the SAO, SEALED the tapes. Markus didn't get access to the tapes, and the tapes were not admitted into evidence. The court denied the motion for relief. The 3rd DCA, without benefit of the tapes, affirmed the denial. Casey filed a pro se motion alleging  fraud. The State filed a motion to seal. Enter Bruce Brugmann, a San Francisco owner of the San Francisco Guardian. He filed a motion to intervene and oppose the motion to seal. The court denied the motion. Brugmann appealed: From Judge Rothenberg's dissent:

On September 17, 2009, Brugmann filed the instant petition for review of the trial court’s order sealing the judicial record. On April 21, 2010, this Court issued an order denying the petition without a written opinion, and on May 6, 2010, Brugmann filed a motion for rehearing, rehearing en banc, and for a written

opinion. The motion for rehearing was granted, and on April 27, 2012, the panel issued a written opinion denying Brugmann’s petition for review of the order sealing the judicial records. Brugmann v. State, 37 Fla. L. Weekly D1041 (Fla. 3d
DCA Apr. 27, 2012). Upon issuance of the written opinion, Brugmann filed a subsequent motion for rehearing en banc. After review of the motion, this Court again granted rehearing; withdrew the April 27, 2012, panel opinion; and a majority of the voting members of this Court denied Brugmann’s petition without
prejudice to seek relief by other means.

In English: The 3rd DCA will not issue any reason for denying Brugmann's petition.

Enter Judge Leslie Rothenberg, friend of the poor, the weak, the oppressed, and champion of open government. She filed a very lengthy (anything over ten pages and we start skimming) dissent, strongly arguing for the release of the tapes. Judges Salter and Ivan Fernandez concurred with Judge Rothenberg's dissent.

What we have here folks, is a very divided 3rd DCA that cannot agree on much in this case. And ain't that fun?

From the peroration of the dissent:

Some of the evidence the successor judge failed to consider in evaluating whether to seal the Hirsch tape is: (1) whether the tape demonstrates that Hirsch gave perjured testimony at the evidentiary hearing; and (2) whether the tape, when
considered with all of the other evidence, supports Casey’s testimony that Hirsch encouraged him to flee the court’s jurisdiction, thereby committing a fraud upon the court at the evidentiary hearing…

Additionally, when ruling on Casey’s motion for relief of judgment, the trial court should have reviewed the tapes to determine if Hirsch and/or Rappaport counseled Casey to commit a crime; Hirsch and/or Rappaport gave perjured testimony; and Hirsch, Rappaport, or the State committed a fraud upon the Court

by falsely representing what was said on the tapes.

Rumpole says: WOW. It's not often we get to use "peroration".
Disclosure: We like Milt Hirsch. And we do not believe for one moment he committed a crime or counseled his client to flee. His reputation earned over many decades as a pre-eminent attorney entitles him to that presumption. And yet....

There is something about this we cannot just abide. Why not release the tapes? Especially if there isn't anything to hide. There is a young man in prison who claims the tapes contain evidence that support his legal arguments and would thus establish a very serious fraud upon the court. Why the rush to seal them? Why won't the circuit court judges hearing his motion listen to them? It is all very...distasteful. One could imagine, in other circumstances, Milt Hirsch as counsel for the accused, championing the release of the tapes and excoriating the government for secrecy, much like Judge Rothenberg has done. This case is bizarre. Down is up. Up is down. Milt Hirsch is on the side of tapes being sealed and kept from a defendant and Judge Rothenberg (to her everlasting credit) is championing giving the defendant a fair hearing and access to evidence.

Very strange.

THE BEST GIFT I EVER GOT WAS FROM A CONVICTED KILLER

DOM printed part of a remarkable essay from Federal District  Judge Richard Kopf, (Nebraska) who runs a remarkable blog here. 
For us, the more interesting part of the blog post than what DOM ran was Judge Kopf's story of his representation of David Tommy Gene Suggett. After reading about how a convicted killer influenced his sentencing as a federal judge, we have no doubt that Judge Kopf would have never thrown a person in jail for patting his lawyer's butt. Experienced, wise, and temperate judges don't act like publicity seeking spoiled prima donnas. 

The title of Judge Kopf's full blog post is the title to our post as well. 

For my (partial) antidote, I realized that I needed a mental image of a physical object that would evoke a sense of balance.  The image that I settled on derives from a gift given to me by a fellow named David Tommy Gene Suggett.

Tommy Gene got into a bar fight in Cozad, Nebraska when a young Hispanic kid provoked him.  One thing led to another, and Tommy Gene stabbed the kid in the heart about three times.  The young man died, and Tommy Gene was convicted of murder.  Ultimately, he was sentenced to 30 years in prison.

After the trial judge refused to give Tommy Gene relief on the sentencing question, I convinced the Nebraska Supreme Court that the trial judge had been too tough on Tommy Gene when he gave him 30 years in prison.  If you feel the need to read more, see State v. Suggett, 200 Neb. 693, 264 N.W.2d 876 (Neb. 1978) (Although sentence of imprisonment of defendant convicted of second-degree murder was required in view of serious nature of crime, where defendant had no significant criminal record, crime was unplanned and provoked by victim, defendant exhibited willingness to work at honest labor, was not addicted to alcohol or narcotic drugs, and his prison record provided evidence that extended period of incarceration was not required to rehabilitate him, term of imprisonment of 30 years was not warranted and would be reduced by Supreme Court to term of 15 years).

When I represented Tommy Gene, I spent a lot of time with him.  I really got to know him.  I learned that he had been born in Arkansas, that his family had abandoned him at a young age, that he spent a lot of nights sleeping in farm wagons filled with cotton, that he had virtually no education, that he had never been in any real trouble, that he had drifted from Arkansas to Nebraska on the hope of farm work, that all the guards and case managers who dealt with him in the prison thought so much of him that they were willing to sign statements for presentation to the judge expressing their view that Tommy Gene ought to be released from prison, and that he really loved my wife’s cooking.

As for the later point, I needed a lot of time with Tommy Gene.  So, I got him moved to the jail in Dawson County.  In that old jail, situated on the second floor of the Sheriff’s office, there were no firm procedures.  A lawyer could see his client about any time the lawyer wanted.  Moreover, the jailer was a nice guy and I got along with him very well.  He allowed me to bring Tommy Gene meals from our home.  I spent numerous evenings sitting on the floor outside of Tommy Gene’s cell while he ate the meal my wife prepared and we talked about his life and his case.

Anyway, I came to really like Tommy Gene.  While there was no question that he had murdered someone, Tommy Gene was not a bad person.  In fact, save for the small matter of stabbing someone three times in the heart, Tommy Gene was a good person.

When I got the decision of the Supreme Court, I called Tommy Gene who by then had been returned to the  prison in Lincoln.  At first, Tommy Gene didn’t understand the good news.  When I finally was able to get through to him that he would be let go soon, he seemed stunned.  Shortly thereafter, and fairly abruptly, Tommy Gene hung up.

As soon as I got a copy of the opinion, I mailed Tommy Gene a copy and told him in a letter to contact me if there was any delay in his parole.  Some months later, I learned that Tommy Gene had been paroled.  With that, Tommy Gene’s case was no longer the compulsive driver it had earlier become.

I never saw him Tommy Gene again.  And except for what I will describe next, I never heard from him again either.

One day a pretty woman walked into our law office and said she would like to speak to me.  I came out to the counter, and she introduced herself as one of Tommy Gene’s friends.  She said she had something for me from Tommy.   With that, she gave me the leather briefcase that is pictured below.  She told me that Tommy Gene had paid one of the other inmates to make the case for me.   She said that Tommy Gene said, “Thanks.”  With that, she left.

The briefcase sits in my office.  I look it at it before I sentence people.  When I do, I hope for balance.  Sometimes it works.

What a remarkable story from a remarkable man. 

We'd like to know from our robed readers, what do you do for balance before you sentence a defendant?

After many years of experience in court we have come to this conclusion: the best way to avoid a bad sentence is not to lose. 

See You In Court. 

WE HAVE A BUTT SLAP

The Judge threw the flag after she caught Chad "ocho cinco" Johnson slapping his lawyer's butt during the plea colloquy. 30 days BCJ. It was Broweird after all.

Chad Johnson -- Ripped By Judge for Slapping Lawyer's Ass - Watch More Celebrity Videos or Subscribe

Here's your slo-mo replay: Ol 85 was taking a plea to a violation of probation. The agreed upon resolution was some additional probation and classes. When the judge asked Johnson if he was happy with his lawyer's services, and Johnson said yes, and the Judge went on to praise Adam Swickle, son of Miami Dade Defense attorney of yesteryear Harvey Swickle, Johnson patted his counsel's derrière.  This pat occurs at 56 seconds of the video. The spectators laughed, the judge threw the flag, and Johnson turned a no-jail plea into 30 days. 

Only in that one county where nothing happens in court with a problem. 
Our view: the judge way overreacted. But then again, she sits in the twilight zone of courts. 

See You in court, where despite their desires, our clients are strictly instructed to keep their hands to themselves. 

GIVE....OR ELSE

Because the Florida Bar mandates generosity:

From Wikipedia:

Altruism is an ethical doctrine  that holds that individuals have a moral obligation to help, serve, or benefit others, if necessary, at the sacrifice of self-interest.

SERGEANT BOSQUE ARRESTED FOR KIDNAPPING

When we last left Opa Locka Sergeant German Bosque, (see our prior post here)  he was a law enforcement officer known more for his lengthy internal affairs rap sheet and misconduct than for his work as a peace officer. 

                                              (in custody)

Today he is in jail, charged with kidnapping: From the Miami Herald:
Former Opa-locka police Sgt. German “GB” Bosque — who has been jailed four times and has a longer internal affairs rap sheet than any cop in Florida — is back behind bars.

State investigators arrested Bosque, 49, on Friday evening, charging him with kidnapping, battery and tampering with a witness who had tried to file a complaint against Bosque. He faces life in prison if convicted of the kidnapping charge, a first-degree felony.

The Herald article details a career in which Bosque has been terminated and reinstated an astounding five times! (The Random Pixel blog also noted that Bosque had been arrested three times as well, which apparently didn't cause any concern with the Hialeah Opa Locka PD) Bosque is now on termination six, which he was in the process of appealing (natch) when the need for a good criminal lawyer and bondsman interceded. 

ON a completely different note, where did all this rain come from? Didn't the storm pass us Thursday night? 

Stay dry. 

former-opa-locka-cop-charged-with.html#storylink=cpy

PD EXODUS/ WEEKEND JAIL/ RUSSIAN DIVORCE

Several PDs are leaving their office this month for good, including new FACDL President Eduardo Pereira, who also sent out an email with this message about weekend jail:

[R]ecent emails have circulated regarding the cancellation of 'Weekend Jail.'  I can report to you that we were in receipt of Director Ryan's memo and that I met with Mr. Ryan along with Chief Judge Soto, Judge Leifman, representatives of the Public Defender's Office, Regional Counsel, and the State Attorney's Office.  All stakeholders involved agreed that Mr. Ryan's concerns were legitimate but that the course of action suggested in his memo should be discussed, rethought and delayed.  We discussed Constitutional issues, statutory requirements and alternative proposals, the strongest being a Corrections run program of weekend work in lieu of overnight jail stays.  To that end, we agreed to meet next week to discuss what options are available and how to transition to a new framework for future clients who would benefit from non-'straight time' sentences, at this time their is no circuit wide prohibition on new weekend jail sentences and current sentences are not being 'cancelled.'  I will report to the membership next week with any developments. 

INVESTITURE:

Judge Ivonne Cuesta (late of the PDs office) is being invested today at twelve noon at the Dade County Courthouse. Judge Cuesta took over for the retired Judge Shelly Schwartz. 

DIVORCE: Family law (yuck) rarely invades the pages of this criminal blog. However, some divorces are more news-blogworthy than others.

In 1698 Peter the Great divorced his wife. Until now, no other sitting Russian leader had dissolved his marriage. Therefore, it is with great sadness that we announce the pending dissolution of marriage between Valdimir Vladimirovich Putin and Lyudmila Aleksandrovna Putin after 30 years. 

                                                 It's over.

Nice weekend coming up.

What's the temperature going to be this weekend? Maybe somewhere between 92-88....HAhahahahahahaha. 


Enjoy it. 

JUNE 6, 1944

Saving Private Ryan - Omaha Beach

None of us can really imagine the horror of Omaha Beach on June 6, 1944.  Almost six thousand men died securing the beachhead  over the first four days. But by the end of that first day- often called by historians "the day of days" 34,000 Americans led by General Omar Bradley had landed. 
There would be no turning back. Fortress Europe was breached. The Americans had landed to free a continent. 
Again. 

We'd done it once before. Now we were back.  Ten months later the war in Europe would be over. But between June 1944 and April 1945 there would be many bloody battles, including the Ardennes Forest on Christmas 1944 when paratroopers of the 101st Airborne, most without winter clothing,  marched toward the German army while regular GIs fled in panic. 

There's one simple reason why we can practice law, defend our clients, go to Heat games, worship with the religion of our choice, live our lives as we chose, raise our families as we see fit:

Because a generation of Americans- hundreds of thousands of them, many of them boys off farms from small towns, answered the call.  Remember them today as they rest at Normandy. 

There are 124,905 americans buried in American burial grounds in foreign lands. There's no other country in the world that can come close to matching that total of sacrifice. You can find a name here.

And don't forget to say thank you. 

We're back. See you in court. 

JUDGE CORTINAS RESIGNS

BREAKING:
(Well, as of May 30th, but we missed it whilst out of town).

After 8 years at the 3rd DCA, Judge Angel Cortinas has resigned to become a partner/shareholder at the Gunster law firm. 





CHARLES THE GREAT WINS AT THE 3RD DCA
Speaking of our favourite appellate court, Judge Emas wrote here for the court reversing the contempt conviction and six month sentence for the aptly named Emmanuel Charlemagne. 
Judge Stacy Glick was reversed for not affording the defendant the chance to present evidence of mitigation, as required under 3.830. Nice to see "contumacious" making a comeback at the 3rd DCA. 

CHANNEL 10 covers the Florida Bar's harassment investigation of Broward Blogger Bill Gelin:

OPEN YOUR MOUTH WIDE AND SAY Ahhhhh

THE CAPTAIN REPORTS:

OPEN YOUR MOUTH WIDE AND SAY AHHHH ......

Because our humble lead scribe Horace Rumpole is in parts unknown and cannot manage to garner broadband service, we post today the latest in the erosion of our beloved Fourth Amendment from SCOTUS.

To be fair, our fellow blogger, DOM, has the post up on the new case and you can go read his post at http://sdfla.blogspot.com/.  It includes a link to the case, but if you're lazy then go here: http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf

The case is Maryland v. King, and it was decided by a decidedly split 5-4 vote.  But, the five and the four are not whom you thought they might be.  Justice Kennedy wrote the opinion and Justice Scalia wrote the Dissent, and boy what a Dissent it was.  Certainly one worth reading.  Of note, Justice Thomas and Justice Scalia did not vote on the same side here. 

From NACDL:

Washington, DC (June 3, 2013) – Today, the U.S. Supreme Court ruled in Maryland v. King (12-207) that “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” (at 28) The 5-4 majority opinion of the Court was delivered by Justice Kennedy and joined by Chief Justice Roberts and Justices Thomas, Alito and Breyer. Justice Scalia filed a dissenting opinion joined by Justices Ginsburg, Sotomayor and Kagan.

In his dissent, Scalia wrote:

"The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations."

And he concluded:

 “ ... I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.”

And in other news:

Big Game Seven at the AAA tonight between the Miami Heat and the Indiana Pacers.  Nothing like a Game Seven and we wish we could be there but we'll have a front row seat watching on our 60" Samsung.  I'm sure Rumpole will have something to say about the results of this game if the Pacers should manage to pull off the game seven upset.  I'm picking the Heat to win and return to a third straight Finals appearance.

UPDATE:

We received an email after the game tonight.  Here is what it said:

Summer is here so enjoy the Heat and the rain.  Look at the bright side; at least the traffic should disappear for about the next ten weeks.

CAPTAIN OUT .....
captain4justice@gmail.com

DON'T STARE AT THE POLICE

Peaceful Miami Fans flocking into AA Arena for a family-friendly fun evening of playoff basketball.




As we who practice criminal law in Miami know, there is "felonious staring" and "misdemeanor staring" although the distinction is sometimes a bit murky, especially to laymen. The result however is predictable: the police will beat your ass. 

Such was the case covered by the Miami New Times here: 

Fourteen-year-old Tremaine McMillian didn't threaten police. He didn't attack them. He wasn't armed. All the black teenager did was appear threatening by shooting Miami-Dade police officers a few "dehumanizing stares," and that was apparently enough for the officers to decide to slam him against the ground and put him in a chokehold.

What are you going to do with today's youth? You tell them time and time again: "don't stare at the police" but do they listen? 

No. 

UPDATE: More on this story from Salon.

See You In Court. 

CRASH THE SYSTEM

BREAKING: MIAMI HEAT LOSE AGAIN. 
"In response to the loss, Miami Heat stars didn't discount the possibility of joining the Indiana Pacers next year. 'If they beat us, then we should play there because we don't like losing' said a Heat player requesting anonymity."

CRASH THE JUSTICE SYSTEM. 
What if everyone rejected a plea and demanded a trial? That was the premise of this op-ed piece in the NY Times this past Sunday:
“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors...

(Rumpole notes: we've been screaming about this for years. The implementation of  minimum mandatory takes the sentencing decision away from the (supposed) fairest and wisest person in a courtroom (the judge) and places it in the hands of a prosecutor- some younger than 25- who are merely players advancing their own cause and institutional interests in an adversarial system. )

Take the case of Erma Faye Stewart, a single African-American mother of two who was arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail, with no one to care for her two young children, she began to panic. Though she maintained her innocence, her court-appointed lawyer told her to plead guilty, since the prosecutor offered probation. Ms. Stewart spent a month in jail, and then relented to a plea. She was sentenced to 10 years’ probation and ordered to pay a $1,000 fine. Then her real punishment began: upon her release, Ms. Stewart was saddled with a felony record; she was destitute, barred from food stamps and evicted from public housing. Once they were homeless, Ms. Stewart’s children were taken away and placed in foster care. In the end, she lost everything even though she took the deal.

Rumpole notes: these repercussions happen every day in a justice system geared to use  the weight of the government and fear of life altering sentences to coerce pleas. Any person who spends any time in any criminal court can hardly say that pleas are mostly fair deals that are in the best interests of the client. It's a broken system that is now only good at breaking people. 

See You In Court. 

404 B

In State court we call it Williams Rule. In Federal court they call it 404B material- evidence of prior crimes, wrongs and acts. 

In State court a judge just sentenced a lawyer to two days jail for silently saying a curse word (the judge said she read his lips). 

In Federal court, for the second time, prosecutor Andrea Hoffman has been caught being less than candid with the court and with her discovery obligations. From John Pacenti's  DBR article on 5/24/2012:


A visibly frustrated Marcia Cooke called federal prosecutor Andrea Hoffman "disingenuous," in questioning her candor about when she knew "vetted units" of the Colombian national police were on the payroll of the Drug Enforcement Administration...

The issue arose in the Miami courtroom of U.S. District Judge Marcia Cooke after defense attorneys raised questions about the role Colombian police played in the investigation of a cocaine trafficking ring that resulted in charges in Florida against 18 people. Defense attorneys started asking in April if Colombian police were paid for their assistance.

Assistant U.S. attorney Andrea Hoffman told Cooke's court she learned of the payments only after a jury was chosen Monday or on Tuesday.

Hoffman was apologetic and blamed miscommunication and a language barrier with Colombian police.

"This is why this does not make sense to me. This is all you do," Cooke replied. "Answer me this: Why does the government get a pass?"

The judge indicated she would reserve judgment on what sanctions, if any, she would impose, but her anger and frustration were palpable. She said Hoffman had breached her ethics as a prosecutor and apparently forgotten she represents the people of the United States...

The exchange with Cooke was not the first time Hoffman faced intense questioning by a Miami federal judge over her conduct in a criminal case. Hoffman was one of three prosecutors who faced sanctions for not telling a defense attorney that the government had its witnesses secretly tape his phone calls.

She was sanctioned in 2009 for her part in failing to inform accused pill mill Dr. Ali Shaygan that two prosecution witnesses had secretly taped phone calls to his defense team. Sanctions against three prosecutors and their office and a $601,000 penalty were overturned by the U.S. Court of Appeals for the Eleventh Circuit. But the substance of findings by U.S. District Judge Alan S. Gold's were not in dispute... Cooke declined to dismiss the case or declare a mistrial but added, "The tug in that direction is quite strong."

She noted the government witnesses were forthright about the police officers being paid and there seemed to be nothing illegal or nefarious about any bonuses.

Cooke also said she understood the defense may believe the officer's objectivity has been tainted by the DEA payments and wondered aloud if an appellate court might overrule her.

She then turned to Hoffman and said she would reserve judgment on her behavior in the case.

Rumpole wonders:

What conduct is worse: silently cursing, or a prosecutor caught withholding evidence for the second time in her career? 

See You In Court. 

MEMORIES

3RD DCA PCA'S TAKE TWO. (HEAT LOSE...HEAT GET BEAT.)

An excellent analysis of the recent spate of 3rd DCA PCAs caused us to re-think our prior criticism of the FIU/Kendall-Courthouse ensconced judges: 

 Anonymous said... While PCA opinions are short, if you actually read them you will learn the following: of the 29 criminal PCAs, six of them are Anders briefs (if you don't know what an Anders brief is, you should stop reading this blog and start reading the South Florida Lawyers blog); 17 of the criminal PCAs are denials of post conviction relief, 15 of which are pro se. Of the six remaining PCAs, 2 are plenary appeals from adult felony court and four are from juvenile court. Friday, May 24, 2013 3:13:00 PM 


Leaping to the defense of his former colleagues was the former CJ of the 3rd DCA:

 Juan Ramirez, Jr. said... If you think the Third District writes PCAs for such a questionable reason as to avoid Supreme Court review, you should check out Marshall v. State, 45 So. 3d 470 (Fla. 3d DCA 2010), in which the en banc court divided 6 to 4, with a concurrence and a dissent, in a developing area of the law (Crawford v. Washington). Of course, I would never suggest my former colleagues would resort to such a questionable practice. I am sure the panel had good reasons for not writing. Friday, May 24, 2013 8:17:00 AM 

 For those of you that do not know, Judge Ramirez left the bench for a much more honourable profession: blogger. His blog is here.

IF YOU CAN'T STAND THE HEAT....GO WATCH EM GET BEAT:
The Heat got beat, which makes our weekend complete. 
We watched  the Heat get Beat Friday night from a very nice box, far removed from the white shirted hoi-polloi -many of whom read this blog and have loved their precious Heat with every ounce of their being ever since the geographically challenged Lebron spit on Cleveland and decided to take his "talents" to South Beach (we just chuckle every time we imagine that carpetbagging phony finding out that the Arena was not on SOBE). 

The Heat's home court advantage disappeared as LBJ's two late turnovers (choke..choke) sealed his spoiled team's fate. 

And all you Heat fans, who are so devoted to this team (so you tell us repeatedly), can you explain to us why everyone was bolting for the exits with about 3 seconds left and your team only down by three? It's not because Miami Heat fans are bandwagon jumping front running phonies is it? 

With a hat-tip to @davidovalle305 who is enjoying the long weekend (and his non-paid furlough from the Herald) in Jamaica, here is an excellent description from an eyewitness to a shooting:

A long holiday weekend marks "di" start of summer. Have fun and "me" see you Tuesday, ready for trial. 

THE HARDEST WORKING MAN

When we last left beleaguered Assistant Public Defender Jay Kolsky, he was the hardest working lawyer in the REGJB- a PD with something like half a million open cases (or perhaps closer to 600). The PDs drew a line in the sand and said "no more." One more case and Jay would drop like a hamster on a wheel, going no where and about to take one step too many. 

The case went to the 3rd DCA who said in formal staid legalese: "Get back to work swine", but the PDs weren't done. Jay needed to be saved. So Quiet Charlie spoke and marshaled the troops and went to the Supremes in Tallahassee. 

"Help" said Charlie, he a man of few words. "Jay can't take it anymore." (According to the opinion it took 26 volumes of court records to say what we just said in one sentence. No wonder the planet is in trouble.) 

Today the Florida Supreme Court ruled here. 

"Jay sounds like a good guy" said the court. Indeed Kolsky caught some Tallahassee love in footnotes 10 and 11 of the opinion, which are just too good not to re-print here:


10. At the time, Kolsky was the sole third-degree felony attorney covering his courtroom and had to absorb the caseload of his co-worker who left the office for other employment.

11. At the time, Kolsky had thirty-six years’ experience and was considered one of the best and most experienced lawyers in the office. 

As for the rest of the opinion, we'll summarize it here:
The PDs might be able to withdraw en masse or refuse appointment (look out Regional Counsel) if Jay is still as busy as he was when the PDs courageously said they would no longer ride in the back of the bus. 

A statute prohibiting the PDs and Regional Counsel from refusing appointment or withdrawing because of excessive case load is neither unconstitutional nor means what it says:

The court ruled:

Thus, we find the statute to be facially constitutional and answer the certified question in the negative. However, the statute should not be applied to preclude a public defender from filing a motion to withdraw based on excessive caseload or

underfunding that would result in ineffective representation of indigent defendants nor to preclude a trial court from granting a motion to withdraw under those circumstances. 

And yet the statute reads:

section 27.5303(1)(d) provides that “[i]n no case shall the court approve a withdrawal by the public defender . . . based solely on the inadequacy of funding or excess workload. 

So much for the ol' "plain language of the statute" rule of statutory construction. 

And finally, and in our opinion, the worst part of the opinion with the potential for far reaching consequences, the nose of the State Attorneys Office stays firmly under the tent of a motion to withdraw. Or to put it another way, the State has standing to object to your motion to withdraw. Mark our words, this has the potential, to quote Chief Justice William Howard Taft, "to be a real pain in the ass."

And so life is circular and all things often end where they begin. The case is remanded to our wonderful little circuit. Jay Kolsky will wheel a few thousand files into a courtroom and stare at them forlornly  and say that he just can't take it anymore. And now the Judge has the ability to say: "I hear you Jay...Appoint Regional Counsel." 

Next up after what has been fondly called "PD11"? 

RC3 v. State. 

See you in court.