A IS A

 Longtime and careful blog readers know that our admiration for the philosophy of Ayn Rand is her careful attention to  metaphysics and epistemology. In that regard one of the foundations of Ms. Rand's philosophy of Objectivism is the concept advanced by Aristotle: A is A.  What is ...is. A fact is a fact and that cannot be changed by a feeling (unless you're a juror on the receiving end of a Rumpole closing argument). 

This brings us to Justice Gorsuch's decision in Niz-Chavez v. Garland, an Immigration case of all things. The fuss (known in legal terms as a case or controversy) is this- aliens in the US accrue time as "presence in the US"-  which for the government trying to remove the alien is a bad thing; for the alien it is a good thing.  

The real problem is the government's computer systems- they do not talk to each other.

 The statute in question requires the government to send notice of a hearing. The Government does this piecemeal, a notice of the charges in one mailing, a date and time in another mailing because the clerk sending the first notice cannot access the court's calendar for the second notice of a date and time. Under the law, "Notice"-whatever that may be  stops the clock of time accruing in the US- which is the goal of the Government. The government says the second notice is enough. The Petitioner says notice has to be one complete document including charges and time and place to appear and neither the first or second or subsequent mailing is sufficient.   

The question revolves around this: does the term "A notice" in which notice is modified  by "A" mean a singular notice, or can the government do it piecemeal? 

 Here, the government sent Mr. Niz-Chavez one document containing the charges against him. Then, two months later, it sent a second document with the time and place of his hearing. ...The government now concedes the first document isn’t enough to trigger the stop-time rule. Still, the government submits, the second document does the trick. On its view, a “notice to appear” is complete and the stop-time rule kicks in whenever it finishes delivering all the statutorily prescribed information. The government says it needs this kind of flexibility to send information piecemeal. It even suggests it should be allowed to spread the statutorily mandated information over as many documents and as much time as it wishes.

Along the way in this opinion and in the briefs the Dictionary Act (the rare legal concept we were not familiar with) came into play, as did the venerable Chicago Manual  of Style, which has a prominent place on Rumpole's desktop.  A few thoughts before we quote the opinion: Gorsuch is establishing himself as an intellectual heir to Justice Scalia, in common sense, writing ability, statutory interpretation, and (western) conservative values that keep the government in check. We like him on the Court. 

  Almost immediately, these provisions pose the government with a problem. To trigger the stop-time rule, the government must serve “a” notice containing all the information Congress has specified. To an ordinary reader—both in 1996 and today—“a” notice would seem to suggest just that: “a” single document containing the required information, not a mishmash of pieces with some assembly required.

(Or as Aristotle and Ms. Rand said: "A is A"). 

The government submits that §1229(a)(1) defines the term “notice to appear” as “written notice”—and then says it’s obvious “written notice” can come by means of one document or many.

But this argument doesn’t quite track. Section 1229(a)(1) says that “written notice” is “referred to as a ‘notice to appear.’” The singular article “a” thus falls outside the defined term (“notice to appear”) and modifies the entire definition. So even if we were to do exactly as the government suggests and substitute “written notice” for “notice to appear,” the law would still stubbornly require “a” written notice containing all the required information.

 ...

Admittedly, a lot here turns on a small word. In the view of some, too much. The dissent urges us to overlook the fact Congress placed the singular article “a” outside the defined term in §1229(a)(1).

 ...

The government observes, for example, that a writer can publish “a” story serially, or an author may deliver “a” manuscript chapter by chapter. Brief in Opposition 10. The dissent offers its own illustrations, highlighting that “a job application” and “a contract” also can be prepared in parts. Post, at 10. So even if IIRIRA speaks repeatedly of “a” notice to appear, the government and dissent contend, it remains possible that Congress meant to allow that notice to come over time and in pieces. The trouble with this response is that everyone admits language doesn’t always work this way. To build on an illustration we used in Pereira, someone who agrees to buy “a car” would hardly expect to receive the chassis today, wheels next week, and an engine to follow.  (The Justice is obviously not familiar with some of the Miami SW 8th street Car Dealers we have represented over the years in the REGJB whose retainers  have kept us well stocked in the better wines we like to drink at mealtime). 

... 

While you might say “she wrote a manuscript” or “he sent three job applications,” no one would say “she wrote manuscript” or “he sent job application.” See The Chicago Manual of Style §5.7, p. 227 (17th ed. 2017);

 ...

The government resists this conclusion by invoking the Dictionary Act. When reading the U. S. Code, that Act tells us to assume “words importing the singular include and apply to several persons, parties, or things,” unless statutory context indicates otherwise. 1 U. S. C. §1. But this instruction has no application here. The Dictionary Act does not transform every use of the singular “a” into the plural “several.”

 ...

Besides, even viewed in isolation the government’s policy arguments are hardly unassailable. If the government finds filling out forms a chore, it has good company. The world is awash in forms, and rarely do agencies afford individuals the same latitude in completing them that the government seeks for itself today.  (We love this. Just love it. We cannot wait to use it with some obstreperous court clerk someday). 

 ... 

The dissent tries to predict how the government will react to a ruling that requires it to follow the law and then proceeds to assess the resulting “costs” and “benefits.” Post, at 17, 20–21. But that kind of raw consequentialist calculation plays no role in our decision. (This argument we love. How many times does the government in our cases warn judges of the consequences to many cases in their decision in one particular case. Prosecutors across the nation can expect to hear this citation our of Rumpole from now on.)

 ...

At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. (In other words, a lawyer's oratory can, like it was said of Churchill "Marshal the English language and send it into battle").  In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them. The judgment of the Court of Appeals for the Sixth Circuit is Reversed.

The penultimate sentences are good old fashioned Western-US-Rancher-Reasoning. We need more of that on the Court as it pertains to the power of the government. Well done Justice Gorsuch. Well done indeed. 

THE GOOD THE BAD THE UGLY

 Life is full of ups and downs. If we have learned anything in our multiple decades of existence it is these two things- 1) Do not judge a person until you have walked a mile in her moccasins; and 2) If you wait patiently by the river the bodies of your enemies will float by. 

With these two thoughts in mind, and a week closing with the start of the NFL draft, we provide you some thoughts: 

Rudy Giuliani: The bad- the FBI serving a search warrant for his electronic devices on Wednesday; the ugly- his press conference when black hair die trickled down his face; the bad- renting Four Seasons Total Landscaping for a press conference instead of the nearby Four Seasons (we usually stay at a Four Seasons when traveling on a case); the ugly- his scene in Borat Subsequent Movie Film where arguably he has his hands down his trousers (trousers is in danger of being lost in the English language. Here is our effort to revive it). Verdict: a bad year. BAD. Wild prediction: something bizarre like Little Pony videos are found on his devices. 

Miami Dolphins: With the sixth pick in the 2021 NFL your Miami Dolphins select..De Vonta Smith, WR Alabama. With the 18th pick in the 2021 NFL draft your Miami Dolphins select....Christian Darrisaw, Tackle, Virginia Tech. In 2020 Darrisaw graded perfect in preventing sacks or hits on his QB. Not one allowed. The Fins strongly consider a RB at this spot, but there are several available in rounds 3-7 and with Darrisaw paving the way, and De Vonta Smith preventing the defense from  stacking the box and stopping the run, the Dolphins future is looking GOOD. Real good. No bad or ugly here. 

Judge Z. Bad month. You know the story. But you know what, it's not over until it's over. Judges are human (yes we really said that). They can learn from their (many) mistakes. A dose of humility is sometimes the right medicine to turn someone around. Ironically, this is the argument we make when we (rarely) represent someone at sentencing. Sometimes its a good thing if your audience can personally connect with your client's experience. BAD but not over and perhaps some good yet is in store. He certainly has the right counsel (David Rothman, attorney to the stars and bench, and that is a good thing). 

Judge MM. BAD. Moveon.org. It's over Johnny. 

 Apple and Facebook. Both just announced blow-out quarters. GOOD. 

India. BAD AND UGLY. The US State department just announced a level 4 alert for travelers. You cannot go. If you are a US citizen in India you must leave. Want to see what the future holds for the world unprepared for pandemics? Look at India now. Hospitals have no room. They have no oxygen or Covid19 therapeutics and crematoriums (we searched, this is the first time we used that word on the blog lo all these years of writing) are melting from the constant use. Look at India. And learn this lesson. The next Pandemic is coming and why do we feel the idiots of the world and US will be even more resistant to wearing masks and shutting down? 

 

IT'S NOT OVER TILL IT'S OVER

 "The series isn't over until the fat lady sings". 

"It's not over until it's over"

Pick your saying.  "It's a long road without any twists and turns."

The Miami US Attorney's office, thwarted by the  outrageous commutation of Philip Esformes mega health care fraud 20 year sentence after a bitter trial, studied the chess board, moved a few pieces, and voila! Mr. Esformes is not in the clear yet. In his prior trial the jury hung on several health care fraud counts. POTUS 45 did not grant Esformes a pardon. He commuted his 20 year sentence and the devil is in the details. While Esformes' case winds its way through the 11th circuit, which once a year reverses a criminal case (usually for Mr. Markus), the US attorneys office in Miami announced their decision to re-try Mr. Esformes on the hung counts. 

In other words, the fat lady has not yet sung on Mr. Esformes' case. 

Judge Scola, when he sentenced Esformes called the case once of the biggest health care fraud schemes in the nation. Or words to that effect. POTUS 45 let him out, but he DOJ of POTUS 46 may just put Philip Esformes back in. 

Of course all is not lost. POTUS 45 said he is going to run again. Which means in 2025 he will be able to let Esformes out again if he wins. Stranger things have happened. 

Jay Weaver and El Herald have the story here. 

PUT A SOCK OVER IT

 Oh we are so smug. Russian Dissident Alexi Navalny, arguably poisoned by Russian President for Life Vlad "the poisoner" Putin, languishes in a Russian prison, recently on a hunger strike and we- the United States of America- shake our head in disgust. "Thank goodness for our enlightened legal system" we say over our second cup of coffee whilst reading the NY Times. 

Protests in Hong Kong are ruthlessly put down. Chinese business leaders cower in fear of Chinese Premier for Life Xi Jinping, who with a snap of the fingers or nod of the head can have a person or an ethnic group imprisoned and executed. 

The leader of North Korea shoots his families enemies with missiles.  "That's what happens in a totalitarian state" we mutter before heading back into court and denying bail for yet another person. 

Case in point- in a post last week we bemoaned that the world came for former officer Derrick Chauvin in Minnesota and wondered who was next? It was right there in front of us all along-  reviled defendant Ghislaine  Maxwell, wasting away from sleep deprivation and prison guard humiliation in the Southern District of North Korea New York. 

"We are being told to believe the women who say they were exploited in this case, and yet the government says 'don't believe Ghislaine Maxwell' " (or words to that effect) argued our own David Markus to the Second Circuit Court of appeals last week. The argument was brilliant. It pushed the appellate court to believe or not believe a woman, which is the heart of the government's case. A nifty piece of legal judo. 

Let's take a deeper dive. Ms. Maxwell is charged essentially with recruiting women for Jeffrey Epstein to exploit. Almost as bad as sitting with a knee on the neck of George Floyd. But Mr. Epstein is dead, so arguably Ms. Maxwell is no longer a danger to the community. She has surrendered her passports. Signed over real estate in other countries. Offered to hire private security guards, all so she can get a decent night's sleep in an apartment. Electronic monitoring. Check. Drone and satellite surveillance. Check. You name it, her legal team has agreed to it. 

And yet, Putin and JinPing like, the authorities hold Ms. Maxwell in a dank, brightly lit cell where guards shine lights in her eyes every fifteen minutes. And this has gone on for months and months. "Put a sock in it or over it" is the government's only response. That, and in this world where satellites can read the labels on the cans of food Kim Jong-Un eats, the government worries that it  will not be able to bring back Ms. Maxwell if she flees to Newark, or Paris, or Lower Matacumbe Key. 

Do not think for one moment this is about risk of flight. This is about torturing a defendant pretrial into surrendering and making her plea guilty. This is about the embarrassment of the federal Bureau of Prisons that allowed Mr. Epstein to kill himself or be murdered. This is about the embarrassment of NY society that hobnobbed with Epstein and Maxwell. Prince Andrew. Presidents Trump and Clinton could socialize with Ms. Maxwell safely, but now she is a danger if she is allowed out of prison to get a hot dog from a street vendor (we love the onions sautéed in ketchup). 

There is no presumption of innocence for Ms. Maxwell. The government has gone out of its way to make sure she cannot adequately prepare for trial. 2.7 million documents in discovery should be easy to review for a woman who has to sleep with a sock over her eyes. 

They are coming for Ghislaine Maxwell because of the public outrage over the accusations against her. And Putin and JinPing the BOP and the US Attorneys are going to get what they want -her continued incarceration and torture. Yes we are so smug about our legal system . It treats defendants so much better than other countries. Have another cup of coffee with our smugness. 

And put a sock over it. 

SMILE FOR THE CAMERA

 We do not live in a cancel culture so much as we live in a verification culture. "I Instagram, therefore I am."   All around us are people ignoring the experience in favor of documenting the experience. Rather than sitting and listening with eyes closed to Yo Yo Ma playing the Fugata, there is a desperate need to take a selfie in front of the Yo Yo Ma poster, the theater, and perhaps even in the audience with Yo Yo Ma or whatever performer in the background. With their backs to the stage, missing the performance, they hold the IPhone at arms length, twisting and turning to get the shot with themselves in the foreground and the artist on the stage in the background. Forget the performance, they need the picture to verify their very existence. 

Count us out. The sun setting in the Pacific; the sun peaking over the rim of the Grand Canyon; an eagle in flight; a deer wandering out of the woods; a symphony in full musical flight. These are the memories that the selfie cancels. What feelings does the sun setting create? Watch the orb melt into the sea. A day is done, but it is starting somewhere else. A timeless cycle of the earth and sun. Witnessed by billions over eons. But in 2020 screw the contemplation, hold the phone and get me in it so I can Snapchat it and post it on Instagram. Look! There is Julia and Greg on Broadway! There they are at the Statute of Liberty! There is Jessica and Harry at the Eiffel Tower! And there they are eating sushi on the Seine. They are having such a better life than me. 

Not. 

What does it smell like on the wharf at the small town in Maine when the lobster boats come in? What does the warmth of a ray of sun feel like at the Uffizi in Florence as it streams through a window and highlights a painting? Selfies don't capture the senses;  the pursuit of the selfie diminishes the experience- it reduces it to a Disney Album. Standing in front of the castle, a picture with Goofy.  $99.95 please and have a Mickey Mouse day. 

Quarantining with Zoom and the ability to use filters hasn't diminished the urge to post the selfie. Look!- There is the lawyer arguing a case on Zoom  with Tokyo at night in the background. And look! There is the lawyer  at that new restaurant sitting and smiling in front of a bowl of pasta with truffles. One lawyer was reduced to stating the obvious-he was a person and not a cat despite what his computer showed. 

We are all desperate to get out. With two shots of Pfizer on board, we are ready to venture back to court, to eating outside, to kayaking the Rainbow river in Florida and the Perfume River in Vietnam.  And when we do these things you can be sure of this- there will be no selfies of us to post on the blog. We will revel in the experience, meditate and lets our senses be fulfilled, and then with a memory better than a selfie, we shall move on. 

Put that camera phone away and enjoy the moment. 

THANK YOU NO-THANK YOU

 We just got finished with a few days of travel- even in this time of Zoom some judges want lawyers in court. Plus we can use the miles to keep our  Platinum status on American. So let's review some history and catch up. Truman beat Dewey. Nixon resigned and so did Mike Mirabal. His paperwork has been filed, he's out the end of April and lawyers everywhere in Dade are pulling out those JNC applications and updating them: "Conducted 54 Zoom hearings in 2020 and redid the back room and achieved a 2210 rating on Chess dot com. 

 

 Think Daryl Dawkins. Moses Malone. Kareem. Wilt. Standing in the center and REJECTING the layup of the hapless NBA'er who dared to drive the lane. Dikembe Mutombo wagging a finger after an epic rejection. 

That is what the Florida Supreme Court did on Thursday when it wrote an order that was basically a "thank you...no-thank you" to Judge Martin Zilber and his erstwhile quest to put the whole "Whistling Dixie" complaint behind him.  The Tallahassee Nine  Seven rejected the settlement Zilber and his counsel to the stars and judges -David Rothman- obtained. The case was sent back for a full evidentiary hearing. A judge will be appointed. Witnesses will be called. Cross examination must be conducted. Sounds like a job for....nah...we do not represent those who wear black robes to work. No Harry Potter for us and no Judges as clients. 

There will be a trial. There will be findings (dum da dum dum) and there will be a recommendation and there will be endless speculation on whether The Florida Supreme Court will accept the punishment or impose its own as is its wont. 

DIXIE 
I wish I didn't hire Dixie
as my JA as my JA 
Against Dixie's complaint I'll take the  stand  
and defend my job she wants me to aband
Away, Away, Away with you JA  Dixie!

FACTS ARE STUBBORN THINGS

 This the 4,310th blog post, This is the first time I am not using the "royal we" or writing under the pomposity of the Rumpole character I have developed.  

I am disheartened by the verdict in the Derrick Chauvin case, and I am having trouble sorting out my feelings. As a criminal defense attorney I have handled hundreds of cases where the racism of the arresting officers was apparent. One homicide detective I have known for decades, during a break in a deposition, made a reference to people like my client (an African American young man) as "animals". 

I once stood in a Broward court room representing a young black man beaten by the police after a bad stop. The judge decided to have some fun with a Dade lawyer and called my case out of order first, on a Monday morning with a jury box full of police officers.  The officers in the box jeered; they objected to my questions; they would yell "overruled" when I objected and the Judge lets it all happen. Afterwards I held the young man's mother as she sobbed into my arms. We were both shaken by what we had experienced. 

Like countless defense attorneys, I have seen booking photos with my client's eye swollen shut.  Once, in a case I tried I had a blow up of my client's booking photo- his  eye swollen shut. The officer had - I kid you not- a broken fingernail. The plea offer for a young African American man with no priors was five years in prison. NG. But no one should be charged and have to endure a trial on such facts. 

I am aware of the rage of decades of police officers killing young black men and being acquitted. James Chaney, Andrew Goodman, and Michael Schwerner, were arrested for registering black votes in Mississippi in the summer of 1964. The police drove them to the edge of town and then handed them over to the Klu Klux Klan who  murdered them. Several  officers were indicted and the case was assigned to Federal Judge W. Harold Cox,  an avowed racist. Seven defendants were convicted. Four were sentenced to three years (for murder!) one to six years, and two to ten years.  In the the words of the judge, all they did was "kill a n(word)  and a Jew".   Such injustice, pain, and racism burns deep in the collective conscience of our country. It is a stain upon our national soul. 

Derrick Chauvin murdered George Floyd on video. His use of force was excessive. He used his knee to squeeze the life out of a man who was considered kind and gentle and who was claustrophobic and was afraid of being handcuffed and placed in the back of a video. 

And yet....

My colleagues, who venerate John Adams successful defense of British soldiers who fired into a crowd in the Boston Massacre case were applauding as loud as President Biden and President Obama who praised the verdict. So much for the chances of an appeal and a re-trial. Public Defenders who never want to see anyone convicted have been rejoicing.  Feeling against racism run up against the legal principles we so revere. In this case, our principles have been discarded. "We got the bad guy" is the rallying cry of the world. 

The ENTIRE WORLD wanted Derrick Chauvin convicted. And this offends me and worries me. The pressure for a conviction and a severe sentence is beyond anything I have ever seen in any criminal case. The defense was laughably bad. Where was the cross examination of the  expert doctor witnesses about whether they know what it feels like to kiss their family goodbye in the morning and not know if they will return at night? How many of them have ever tried to effectuate an arrest of a suspect who outweighs them by 50 or 75 pounds surrounded by a hostile crowd? Where was the evidence of Chauvin's commendations and the times he has put his life on the line to do his job? Where was a Richard Sharpstein, slashing at the state's case, witnesses withering on the stand under a professional, experienced cross examination. Where was the Gerry Spence, telling a story about how dangerous it is to be a police officer  and developing a theme of the case?  My colleagues are nowhere to be found on this case.  No, this was not a defense. It was a slow, public plea of guilty under the guise of due process. 

My friends of color, who have endured the decades of pain and rage do not care. "He got more due process than..." fill in the blank of many black defendant's wrongfully convicted, or the many young black men and women killed by the police. 

I understand the anger. Somewhat, because I freely admit I have never been discriminated against by the color of my skin. So I cannot fully understand the anger and pain or the frustration of not having a voice that will be listened to. I grasp it intellectually. That is all I can say after deep reflection. 

But I cannot accept the concept of payback. I do not visit the sins of the father on the son. I endeavor to treat every man and woman as a unique individual, and I feel that Chauvin's outcome was pre-destined regardless of the defense, regardless of any evidence that might show he was acting lawfully to arrest someone who was resisting. And perhaps this is the worst case to make a stand because we can all see what Chauvin did and how he murdered George Floyd. 

But as a defense attorney, this is where I make my stand. In the worst cases with the clients accused of the worst crimes. 

Over these past few weeks I have been  constantly reminded of the Holocaust era poem of  German pastor Martin Niemoller- "Then they came for me." 

This week they came for Derrick Chauvin and the entire world applauded. 

And that has be worried. 

AN INTERVENTION

If things weren't ugly before now...they are ugly and getting uglier. 

Judge Zilber's former Judicial Assistant, not satisfied with the discipline recommended by the JQC, has filed a motion in our own Florida Supreme Court to intervene. In the motion she is seeking additional and enhanced sanctions against Judge Zilber, her former employer. She wants him disbarred. She wants him impeached. She wants his name stricken from the rolls of attorneys and to never be spoken of again. She wants him rereferred to the International Court at the Hague for prosecution for war crimes. She wants him removed from the European Union. Well, she wants some of those things. Take a look and remember....

Hell hath no fury like a judicial assistant scorned.  (especially one who had to move furniture). 

Intervene by HR on Scribd

THE NON RESIGNATION RESIGNATION

Where, you must be wondering, are the DBR and El Herald articles on the resignation of embattled county court Judge Mike Mirabal? The articles are on hold until  Double M sends his papers to Governor DeSantis. And it appears, although we have it on very good authority MM told the JQC he was outta here, he has not sent the papers to the governor. 

"Why"? You as the inquisitive reader may be asking, have the papers not been sent? And while we are on the subject of mysteries, do you need a license of any sort to fly a helicopter on Mars as NASA did on Monday? 

We do not know. And when we are stumped, we follow that age old journalism advice- follow the money. 

First, MM is resigning. We stake our considerable reputation on it. 

Maybe he is waiting for a last paycheck. Former Judge Harvey Shenberg had a problem sending a kid to college on a judicial salary (so he took an undercover FBI  bribe to sell an informant's name and went to prison for a while and a bit).  Maybe he wants to do the right thing and give his staff a few days to find a new job, although that would be out of character for a person whose character is well documented by doing a Pacer search with his name. The federal lawsuits say it all, and the order  where  Judge Williams bounces him out of court where he is the plaintiff is a doozy. 

Let's just say you do not want to have MM involved in any real estate transactions you care about. Things tend to go horribly wrong when he is involved, and there are title double switches, deeds and misdeeds abound, and a real estate game of three card monte usually follows. "I can't be sued for foreclosure, I sent the deed to my mom and then the dog ate it " kind of stuff. Really, 

Maybe there is some comp time at stake. The truth will out and it will not be pleasant. All we can tell you is this,  people who do know are being very very silent. So something is rotten in Denmark, to quote our Bard in Hamlet. And while we are on the subject of Billy  Shakespeare....

"The fault dear Brutus, lies not in our stars, but in our resignation letter". 

CLOSING ARGUMENT

 Former Police Officer Derrick Chavin most likely spent his last weekend of freedom for a very very long time. The prosecution heads into closing arguments this week on what we have seen to be a slow plea with evidence admitted that would never have passed muster in our trials, especially in Florida. ME's stating that the cause of death was homicide. Puhleeze. We would have savaged the academic bookworm who opined about the functioning of lungs and the excessive force. He would have been  gasping for his own air on the stand with a cross examination that would have focused on the last time he was surrounded by a hostile crowd while trying to arrest a felon who outweighed by a hundred pounds.  While he may make split second decisions about patients lives in an ICU, how many times does his decisions affect not only the patient's life, but his own? 

But we did not try the case. 

How do you prepare for closing argument? 

Mr. Markus is known to watch "A Few Good Men" for inspiration. 

We play Bruce Springsteen's "No Retreat No Surrender" in our car every day during a trial, and in the parking lot on the day of closing. Then as we have a small break in the proceedings just before closing we close our eyes and recite this stanza from Thomas Babington Macaulay's Lays of Ancient Rome:

Then Out spake brave Horatius Captain of the gate: 

"To every man upon this earth, death come soon or late. 

And how can man die better than facing fearful odds.

 For the ashes of his Father and the Temple of his Gods." 

Benefits of a classical education. 

A NEW YORK LOVE STORY

 The time is 1959. Successful NY personal injury lawyer Burt Pugach sees a beautiful young Linda Riss, ten years younger than he is,  at a bus stop. He finds out where she lives and shows up every morning in his fancy car offering her a ride to high school. Rides turn into dates  at all the swankiest New York spots like the Copa or the Stork Club or the nightclub he owns. Burt is a pilot who  owns a plane and they go flying. Then Linda finds out Burt is married and ends the relationship sending Burt into a jealous frenzy including phone calls saying "If I can't have you, no one can."

Shortly thereafter Linda Riss is blinded when two thugs attack her and splash lye in her face. 

Burt Pugach in the middle being arrested

Burt is arrested and prosecuted and loses a trial and sentenced to 30 years in prison. 

This is where the story becomes a New York Love story. 

Released after 14 years Burt becomes a "paralegal" and begins wooing...Linda.  Blind, having her youth taken from her in a horrific attack, she is alone and succumbs to his entreaties and they get married and spend the rest of their lives together. 

Burt and Linda 

Linda died in 2007 and Burt passed away recently. The story dominated the NY tabloids at the time of the attack and then again when they were married. "Marrying him was the best revenge" Linda was quoted by a newspaper as saying. 

Of course along the way Burt had an affair with a younger woman, she dumped him, he threatened her, she had him arrested, he had another trial in which Linda stood by his side and he was acquitted. Once again they were tabloid fodder for weeks. 

There is an exceptional documentary on this unusual live called Crazy Love. 

We highly recommend. it. 

JUDGE RESIGNS!

 We know what you're thinking...but it's not a Judge whose name begins with a Z.

County Court Judge Mike Mirabal resigned Friday afternoon in the face of some very serious JQC allegations that carried over from a Bar complaint that was pending when he was elected- so much for the educated discernment of Miami-Dade voters. 

More on this as it breaks. But we have verified this with multiple- very political sources. 

Judge Mirabal- took office  January 5, 2021- resigned: April 16, 2021. 

Quite the tenure. 

42

 April 15 is the anniversary of the day Jackie Roosevelt Robinson broke into the big leagues 74 years ago today. All ballplayers, coaches and umpires will honor Jackie Robinson by wearing 42. It is a well deserved honor. 

75 years ago, in 1946 a black man could not play in the major leagues. In 1947 one black man was allowed in. This two years after American black men fought for the United States (in a segregated army) and died for a country that would not let them use the same bathrooms, eat in the same restaurants, sleep in the same hotels, and allow their children into the same schools as white people. 

The question we are pondering is how much things have changed? Bathrooms, restaurants, schools (mostly) all go without saying as being integrated. But our streets are not as this horrible video shows: 

Angry Staff https://twitter.com/i/status/1382119550985048068

And then there is George Floyd and Daunte Wright. First, when did Minnesota become North Mississippi? Who knew the frozen tundra hid such vehement racism? And second- we admit to thinking after George Floyd (and the many police killings before Floyd-remember the epidemic of killings during the last year of the Obama administration?) "well this will change things." 

But things are not changing. An African American man or woman can go into any restaurant, but they cannot walk down or drive down every street. Two things appear to be at play here. First, systemic and perhaps unconscious racism. A strange man walks in a neighborhood where he is unknown and nobody pays much attention, unless he is black.  Then problems start ala Travon Martin, et.al. 

Second and more insidious are the actions of the police, They are reaching for their guns during misdemeanor traffic stops and minor felony arrests more and more when the suspect is black. Let's assume Daunte Wright resisted arrest- that he ignored the order of the police and wanted to get back into his car and drive away. 

Police appear to have this attitude that they are never going to allow that to happen even if that means killing the person, which they are doing with alarming alacrity. What can be done so that police do not treat these encounters as personal? 

And yet the other point of view is that the person has committed a crime, has a warrant, may well be dangerous and the police are not doing their job by letting them go and arresting them at another time. 

There has got to be a way to resolve this because it is ripping our country apart. We have experienced it here in Miami in the Officer Lozano case in which a city of Miami police officer shot and killed Clement Lloyd who was on a motorcycle in 1989. Ovalle wrote about it here in 2014 when Pandemic was just a word under "P" in the dictionary. 

By now we realize this is not going away. Police are killing people during minor stops and encounters and although they are being prosecuted with increasing frequency still the killings continue. Eric Garner was put in a choke hold by police in NYC in 2014 and killed despite the fact he said "I can't breathe eleven times". His crime was selling single cigarettes.  Michael Brown (18) was killed in Ferguson Mississippi in August 2014  for suspicion of stealing a box of cigars. Tamir Rice (12) was shot and killed in November 2014 in Cleveland, Ohio when police saw him with a toy gun. Walter Scott was shot in the back five times by a white police officer for driving a car with a broken taillight in Charleston South Carolina in April 2015. Philando Castile was killed by police while driving his girlfriend in  St. Paul, Minnesota in July 2016. Stephon Clark was shot seven times by police officers in  March 2018 while he was carrying a cell phone in his grandmother's back yard in California. And of course there is Breonna Taylor who was shot eight times and killed by police while she was in her apartment in March 2020 in Louisville, Kentucky. 

It just goes on and on and on. 

If we are keeping count, who will be this tragic number 42? 

ABRAHAM LINCOLN'S DEATH

 Abraham Lincoln, our 16th President, and our greatest, died today at 7:22 a.m in 1865. 

Secretary Of War Edwin Stanton  State William H.  Seward was reported to have said 

                                    "Now he belongs to the ages." 

Of all the wonderful things Lincoln said, perhaps this short sentence carries the most meaning after the last four years we have been through: 

“America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.”

HERALD SLAMS ZILBER

 In a positively Rumpolian editorial, the Miami Herald (who we suspect may just be reading this blog) "slammed" Judge Zilber and called for the Florida Supreme Court to "slam" Judge Zilber.  The Editorial is here.  

The "Tiger Slam" in golf is winning all four major tournaments consecutively, albeit over two years.  The "Zilber-Slam" shall be forever known as getting slammed by the JQC, Rumpole, and The Miami Herald, in that order.  Not to be confused with the "Full Ginsberg", which is media speak for appearing on all the Sunday morning nationwide news talk shows in one morning including Meet the Press, Face the Nation, The Week On ABC,  (Trump's) Fox News Sunday, and the Late Edition on CNN. The term is so named after attorney William H Ginsburg, who accomplished it on February 1, 1998, while defending one Monica Lewinsky. 

From the Herald Slam: 

Here’s one more achievement for Martin Zilber’s scrapbook: The Miami-Dade Circuit judge is facing a 60-day suspension and $30,000 fine for routinely skipping work, ordering his staff to run personal errands for him and, yes, having a staffer assemble a scrapbook of his achievements. 

(ouch)

...

In addition to being in charge of the judge’s calendar and running his office, this beleaguered woman also was forced to work on the scrapbook. Once, according to the JQC, he asked this pregnant assistant to wheel his chair up “several floors to the courtroom and then lift it onto the dais prior to hearings.”

We can only hope the judge wasn’t seated in the chair when he made her do this.

(Yowza! What a shot! We are seriously jealous of whomever wrote that Zilber-Zinger). 

...And once the coronavirus pandemic hit, he hit the road — to Malibu, California, for a week.

Well as they say in the Media, "This story has legs"- just not the ones attached to a certain formerly pregnant JA. 

In all seriousness, the pompousness of the Judge's behavior and his  treatment of his staff speaks volumes and is what is fueling this story we believe. Judges -especially during the pandemic- just don't have a lot to do at times. At other times, despite what this blog sometimes implies, they work very long and hard, slogging through trial after trial, separating the legal wheat from the inadmissible chafe.  

So the Judge not being in Court is no big deal to us. But we think the insight into his character by the way he has been reported to treat his staff- ordering them to run personal errands, driving him around as is he is some celebrity,  creating some ego-driven scrap book, moving furniture for goodness sakes- all of this speaks to a person with a big ego who thinks they are special. The best judges we know are the ones who know they are not special. The judges who truly act on the belief that they are privileged to hold their position. We see these judges- the ones who are in their chambers brewing coffee for their jurors and the lawyers; the ones who are photocopying cases and doing whatever needs to be done to move a calendar and a case. This is what is so offensive about the reported conduct, and this is what is giving the story the "legs" we are talking about. 

STACK THE COURT

UPDATE: We have never used our considerable influence as a legal blogger who is widely read. However, precedent is made to be broken is what we always tell the appellate courts in oral argument. SO, if anyone knows the defendant in this case, please let them know we are very interested in representing and defending them. 

Stolen Doritos Truck Involved in 100-Mile Chase | Food & Wine (foodandwine.com)

 DOM blogged the horrible news that US District Court Judge Sandra Feuerstein EDNY was killed by a driver in Boca over the weekend. The news was extensively reported in NYC and the driver's name was Snape" who allegedly told the police she was Harry Potter. 

If you haven't done so scroll down to the comments in the California Case Law part one. The comments are evenly distributed that the Judge's actions are no big deal and the Judge's actions are a big deal. The Florida Supreme Court has the final say.

Query: Do you think the US Supreme Court should be expanded? Every appellate court in the land has panels why can't the Supreme Court have sixteen or eighteen  judges and meet in panels of nine. As the caseloads expand throughout the country, only the Supreme Court has nine judges struggling to handle the appeals from all the circuits. It should not be as hard as it is to get certiorari for important issues.  As a well known defender of Judges, we are the first to say that the nine in DC appear to be overworked and could use some help. Perhaps there could be a system where a bipartisan panel of judges selects nine experienced judges throughout the country to serve two or four year terms on the court. Wouldn't you want to see Judge Sola or Moreno or Cook or Jordan or Luck get a shot on the court for a few years? 

There is no constitutional requirement for nine judges on the court you know. 

COVID UPDATE

It has been a while since we did a simple Covid19 update, what with reports of pregnant JAs lugging furniture around the courthouse, things have been positively "Broweird" in Miami. 

Florida's Dept Of Health Covid dashboard reported 5,520 new cases on Sunday. Miami reported 1,160 new infections and 12 more tragic deaths. 

Statewide 7% of the tests administered were positive which probably means we are not doing enough testing. 

The all important R rate in Miami-Dade is stubbornly staying above 1 at  about 1.06.  This tracks the number of people an infected person is infecting. Once the number falls below 1, the virus dies out because every new person infected is infecting less than one other person. The more people who get vaccinated and who continue to wear masks, the sooner that number will fall below 1 in Miami, Florida, and the world (except for some cities and states who believe the whole thing was scam designed to get the former president out of office. Those people will just eventually die out from covid19  and pure stupidity). 

Have you gotten your first/second shot yet? We have our second on board and are feeling great. 

No appointment necessary shots for people age 16 and up begin at the Hard Rock Stadium today from 8 am to 10 pm. Here is the Herald article covering it all.  For kids 16-17 they need a parent and a both certificate (it's not Joes so a folded up 50 isn't going to work). 

Lawyers Only: Take our Vaccine Poll

I want to get vaccinated 

I have been vaccinated (either first or second shots or the J&J)

Vaccines are for chumps/Trump Won/I don't trust the vaccines and Dr. Faucci. 

CALFORNIA CASE LAW PART TWO

 Rumpole for the defense. 

Ladies and gentlemen of the jury. You have heard the evidence. When last seen, the victim, one Judge Martin Zilber, was staggering out of the JQC with a knife in his back. And the prosecutor wants you to convict my client, Judge Zilber's former judicial assistant, of the crime. 

But lets do what the prosecutor has not done and apparently will not do. Let us look at the evidence not by saying "why did she do it" but "did she do it?"

The prosecutor says there was motive. Judge Zilber had her do his shopping on line, he had her not file leave slips when he was in Malibu, he had her moving furniture while pregnant. 

But as we say in the law, Cui Bono?  Which is Latin for "who benefits"? 

We all know that after leaving her position as a judicial assistant, Ms. Moneypenny went to work for an attorney. Now this is not just any attorney, it is an attorney who specializes in defending litigants facing mortgage foreclosures. This lawyer fights for the little guys against the big, bad banks. And this lawyer is notorious, coming into conflict with not just many judges, but panels of the Third District Court of Appeals, who after one contentious oral argument saw fit to refer this lawyer to the Florida Bar. 

Now where was the victim of this stabbing assigned? The civil division. And what types of cases did he handle you may ask?

[dramatic pause...deep voice] M o  r  t g  a  g  e   F o r e c l o s u r e s!

The Daily Business Review has reported that the JA went to this lawyer and told him that the Judge unfairly targeted the lawyer's foreclosure defense clients. 

And who actually prepared the JQC complaint? Was it Ms. Moneypenny alone? 

NO! You heard the evidence it was Moneypenny along with her new employer. 

This was not, ladies and gentlemen of the jury murder most foul, it was a more baser motive..it was VENGEANCE 

VENEGEANCE which the bible teaches us is reserved alone for the almighty. Vengeance is mine sayeth the lord! 

It was not Ms. Moneypenny who stabbed our good judge. It was not the butler in the laundry room with the candlestick. It was the lawyer, defender of foreclosures, angry at the judiciary, looking to strike back at the evil empire who takes homes away from his clients. It was the lawyer  who slipped the knife in when no one was looking. 

My client is not guilty. 

Item: The DBR has reported that Judge Zilber's former JA went to a foreclosure defense lawyer who helped her prepare the JQC complaint and then hired her to work for him. A veritable love fest.  It does not excuse Judge Zilber's self admitted conduct, but it sure puts a different spin on this case. 

Item: Where in the world was Judge Zilber was part of the JQC investigation. Exclusive to the blog is evidence that was proven that Judge Zilber was NOT on Mars checking out the Ingenuity Helicopter. 

CALIFORNIA CASE LAW A TWO PART SERIES

"I was reading case law...lots and lots of case law". 

That was the defense of Miami Judge Martin Zilber to the JQC complaint that he was not in his chambers or courtroom when he was supposed to be. That...(prepare to be shocked, and please send small children out of the room) the Judge took MORE TIME OFF then he was allowed to take. (cue ominous music).

Now we have two questions- first, what case law was he reading and, 2- where was he reading it. 

(foggy dream sequence chambers of Judge Zilber. Dramatis Personae- Judge Zilber; JA (more on her tomorrow). )

JZ: What's on the calendar tomorrow Moneypenny?

JA: 35 criminal cases set for report, plus arraignments. 

JZ: Any of those cases need PD appointments?

JA: Yes sir.

JZ: Then get me Giddeon v. Wainwright.  Any of those cases involve confessions? 

JA: Yes sir. 

JZ. Then get me the Miranda decision. Also, throw in Marbury v. Madison to review.

Now, with the understanding of great legal study taking place, where was the studying occurring? 

The Miami Dade Court law library? (stop laughing, we once saw a judge in there in 1979).  UM Law Campus? Harvard Law? No, no and no. 

The studious judge was some place more studious, more synonymous with intense legal study, meditation, contemplation, not to mention swimming pools and movie stars (obscure reference to Beverly Hillbillies  for those of you under 50) ....MALIBU!. 

Yes Malibu, that land of beaches and California  where significant legal issues are endlessly debated. Walk by any Vegan Cafe in Malibu and you're likely to hear "The Oklahoma Supreme Court is taking a hard look at the exclusionary rule. Meanwhile have you seen what that appellate court in Maine wrote about police stops?' It was in this bastion of legal study that Judge Zilber repaired to for repast and reflection that has the JQC up in arms. 

A PATRON OF THE ARTS

You never know what is going to come out of a JQC investigation. It's like an IRS audit, but more painful. It turns out our legal scholar is also a patron of the arts. Judge Zilber admitted to using his staff for personal errands like on-line shopping ("Should I click the set up monthly delivery button on Amazon Ms. Moneypenny?" "No sir. No one needs that much fiber and shoe polish. One batch should be enough for the rest of the year."), registering his car (in retrospect better to have a JQC complaint about an expired tag then this mess), and sending his overworked and underpaid bailiff to Miami Beach to get him Art Basel tickets. On this we give the judge a pass. Call it "Rumpole's Patron of the Arts exception". We all need a little more culture in our lives. 

Unfortunately the Judge also asked his JA to "Keep a personal scrapbook of his achievements"  (wonder if this will make it?) and wheel his chair up several floors and put it on the bench while his JA was pregnant. Hey- women wanted to be treated like equals right? The bailiff was unavailable and how would it look for a judge, robes flapping, hauling furniture around the courthouse? A pregnant woman was sure to engender some sympathy and a nice stranger would surely step in and help the pregnant woman. Not. 

Zilber's defense: "I only asked the staff to do this. I did not tell them." (He really said this). This is nice to know.  Judge: "I hereby sentence you to five years in prison."  Defendant: "Are you asking me or telling me?" 

THE CONSPIRACY 

Every former PD and ASA will tell you the surest way to get caught in a crime is to bring in a partner. Do it yourself, and there is no one to flip on you. Zilber, who does not have a background in criminal law learned this lesson the hard way. He asked his JA to falsify his documents that he has to file that account for his time. Now there is a co-conspirator and witness and this was his downfall. 

Did you know our Miami Circuit has an administrative order that judges can only take off 30 days a year? (really). The JQC found that between January 21, 2019 and March 31, 2020, the Judge took off 51 days without authorization. The operative part of the finding is that this is when he was assigned to civil. Because once you hear he was in civil, the response is "Oh...he was in civil. Big deal." 

Here is the show stopper, directly from the report: 

Zilber during the same period. Judge Zilber testified that on some of the days he was absent without authorization in 2019, he was working remotely from home reading case law or preparing for hearings.

Rumpole says, a judges work is never done. From sun up to sun down, its case law case law case law. And trial prep-don't forget that. Just how does a judge prep for trial? They don't make openings or closings or question witnesses. Wait! We know. They prepare voir dire! That must be it. He was writing out individual voir dire questions for every case set for trial, based on his extensive review of the facts of the case. Of course. 

From the report: 

 The Commission also found that during the week of August 3, 2020, Judge Zilber took a week-long vacation to Malibu, California without making the proper leave notifications or requests. In fact, the Commission found that he instructed his JA to not submit a leave request or ask for coverage for that absence because he was going to be working remotely anyway. Judge Zilber testified that he planned to, and did, sign orders, and continued to participate remotely in legal community events, read case law, and prepare for hearings set for the following week. However, instead of remotely attending to his regularly scheduled hearings and dockets, Judge Zilber instructed his JA to cancel and reschedule the hearings and dockets from the week of August 3 to another time.

During the pandemic the judges were supposed to keep a diary of their activities (Ok  a log but we like the dairy image better). Zilber committed a boo-boo: 

There is also a blank space for "notes". For the week of his August 3 vacation, Judge Zilber instructed his JA to list two motion hearings on the pandemic log, and four "special set" hearings. While the Commission was able to determine that Judge Zilber did remotely conduct two emergency motion hearings on Friday August 7, 2020, the Commission also determined that the four "special set hearings" listed on the pandemic log were, in fact, social and/or educational Zoom meetings including a Cuban American Bar Association luncheon, a Florida Bar town hall meeting, and a swearing in ceremony. In response to the Commission's Notice ofInvestigation, Judge Zilber stated that, when he told his JA to list the other functions, he misunderstood the purpose of the log, and believed it was designed to give the Administrative Judge a general perspective of the activities that judges were engaged in during the pandemic while working remotely.

Rumpole notes we have a circuit court judge given the power of life and death who must interpret difficult statutes and case law, and he cannot figure out how to keep a diary? Puhleeze.  On the other hand, now that we know "special set hearings=CABA Luncheons" we can ask for more continuances: 

"I'm sorry Judge, I cannot try the case the week of May 3, I have a special set hearing on Wednesday." Judge: "What is that hearing counsel?" Rumpole: "The National Association of Criminal Defense Attorneys Spa Day. It's at the Fontainebleau and I never miss it. The massages are great"

Here is something sure to strike fear in the hearts of Judges everywhere: 

the Commission also believes that it is not unreasonable to expect that a judge serving in a trial-level court, especially one as busy as the 11th Judicial Circuit, be generally present at the courthouse during normal court hours.  Cue Dolly Parton Video: "Working 9 to 5 what a way to make a living. Granting Summary judgment motions, and reading case law by the ocean." (Pacific Ocean).

TOMMORROW: THE UNKNOWN STORY 

Think this is the end of the Judge Z story? It is just the beginning. There is a story behind the story, one filled with intrigued, revenge, and of course mortgage foreclosure litigation. Coming Sunday. 

zilber fidings by HR on Scribd

THE DUKE OF EDINBOROUGH HAS PASSED AWAY

 HRH Prince Philip, husband of Her Royal Highness Queen Elizabeth II, passed away Thursday at Windsor Castle at age 99. The Prince had been in poor health for some time and the news is not unexpected. 

The passing of the man who defined and redefined the role of the Royal consort begins what will become a challenging time of change for the royal family. Queen Elizabeth is 95 and the first in line to the throne Prince Charles is 73. Their respective ages mean that within a short period of time the next generation of the monarchy, roiled recently with the defection of Prince Harry and his wife Megan Markle (who is sometimes quoted by putative judicial candidates in our own circuit), will assume power. 

Query: Is the Monarchy still relevant and needed? Is the Monarchy an archaic tradition from a time when gentlemen wore bowlers and morning coats and opened doors for ladies? In this new age of Zoom, Robinhood stock investors, George Floyd inspired social change, and Vegan smoothies,  is curtseying  to the Monarch  something that just doesn't mean anything anymore? 

Ageing and irascible, we do not like change. To us the British Monarchy means something good for the world. With all its warts and historical issues, for all the bad there was good. England stood alone in 1939 as Europe fell to the darkness of Nazism. And part of why England stood and persevered was the Monarchy and King George VI who reluctantly assumed the throne when his brother abdicated for the love of Wallace Simpson, an American divorcee. It was King George VI, who suffered from a severe speech impediment and who was forced to use the new technology of radio and address his subjects world wide who found the strength to give millions of subjects of the British Empire the faith and courage to stand firm. 

And on June 4, 1940, in the greatest speech of modern history, when Winston Spencer Churchill, the new Prime Minister addressed Parliament, the British Army trapped at Dunkirk and facing annihilation, his own party having lost confidence in his leadership and urging him to sue for peace with Hitler, it was Churchill who stood alone with the British people and thundered that they all would fight on the landing grounds, and in the streets, and on the beaches and in the fields and in the hills and that England would never surrender!!

What is often overlooked from the speech about  which John F. Kennedy once said "He marshalled the English language and sent it off into battle" is the peroration, of which there is none finer:  

"And if, which I do not for a moment believe, this island, or a large part of it were subjugated and starving, then our Empire beyond the seas, armed and guarded by the British fleet, would carry on the struggle! Until in God's good time the New World, with all its power and might, steps forth to the liberation of the old!"

Yes dear readers, let there be no mistake. The World needs the British Empire. Perhaps in these times of uncertainty, emerging Chinese power, pandemics, global warming approaching a tipping point of a crisis, and other unforeseen challenges, the world needs the British Empire and the monarch now more than ever. 

Rule Britannia. Britannia rules the waves!

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. 

ALCEE HASTINGS HAS PASSED AWAY

 Alcee Hastings, an iconic and lightening-rod figure in South Florida for over fifty years has passed away. The legal community in Miami remembers Mr. Hastings as the Federal Judge arrested and charged with bribery. He was acquitted (trivia- who was his defense counsel?) and then impeached and removed from office. The Senate did not bar Mr. Hastings from holding other office and in a fitting coda to his life and career he was elected to congress, becoming the dean of the Florida congressional congregation. 

After his removal from the bench, and before he ran for congress Alcee Hastings was the defense attorney in one high-profile Miami corruption case. Name the nickname of the case, and who he represented. The verdict in that multi-defendant case was mixed, but Mr. Hastings walked his client with a closing argument that was labeled brilliant by all who saw it. 

From Mr. Markus comes a picture of Jeff Weiner, Alcee Hastings, Mr. Markus's father, and future Judge Milt Hirsch 

The full career of Representative Hastings is in this NY Times Obit which includes this wonderful fact: 

Gov. Reuben Askew appointed Mr. Hastings to the circuit court of Broward County in 1977; the swearing-in ceremony was held at a high school he had helped desegregate. Two years later, President Carter named him to the federal bench.

SHINE EM UP

 Did you know that your Miami legal bloggers talk? Well at least by email we exchange ideas, tips, and try and stay in our own lanes during Pax-Blogger-Miami. Of course from time to time lines are crossed and we have to go to the mattresses, but the disputes are short lived. When Mr. Markus blogs well we all win. And of course we always blog well. 

And so it came to pass that during an electronic exchange of ideas we went down the path of getting a shoe shine before court. It is a ritual. It inspires confidence. It is a brief repast before the day begins, or during the day, when a shot of Cuban coffee, and a glance at the sports section clears one's mind before the troubles of court intrude. 

In the course of this exchange of ideas we mentioned that in an "only in Miami story" the gentleman who shinned shoes at the REGJB in the 1970s-80s was of course arrested and convicted of murder. Or at least that is how we remember it in the foggiest part of our memory. 

So it is time for the Justice Blog Irregulars, many of whom are legal historians par excel-lance,  to weigh in on the details. 

Have at it. 

WHERE DO WE DRAW THE LINE

 WWII was an existential threat to the United States and the world. A small coterie of world leaders emerged, men meeting the moment. All of them rising to the challenge. The war would have been won without them, but at what cost? And knowing of their flawed personal characters, would we have been better off without them? 

Dwight Eisenhower was a mid-level desk bound general at the Pentagon when General George Marshall and President Franklin Roosevelt reached down and made him Supreme Allied Commander of all of the allied forces in WWII. It was Eisenhower's ability to work with the British and French and Canadian politicians and generals that allowed him to formulate the strategy that defeated Germany. Item: Eisenhower, arguably the most powerful man in the world, groomed and then had an affair with a much younger subordinate female- Kay Somersby, while leading the allied effort in North Africa and Europe.  Would the world have been better off with a more mediocre but morally stronger general? 

President Franklin Roosevelt led the United States out of a depression and then through World War Two. Leading a country through the waters of isolationism, and then navigating the egos of Stalin and Churchill, and making decisions that affected the lives of hundreds of millions of people world wide. He is arguably considered our second or third greatest president behind Lincoln and Washington. Item: FDR had numerous affairs while married to Eleanor, and he groomed his young secretary Missy LeHand for a sexual affair, including building a home on his estate that he intended to share with her once he was out of office. Would the world have been better if Wendell Wilkie had defeated Roosevelt in 1940, Governor Dewey had won the presidency in 1944 or if Herbert Hoover had won a second term in 1932 and continued the hands-off policies that led America into the depression? 

You're suffering a massive heart attack. There is a world famous heart surgeon on staff waiting to save you. He regularly cheats on his wife. There is a mediocre heart surgeon who saves about 50% of the people he operates on. He goes to church every Sunday and has been married to the same woman for 20 years. Who do you want to try and save you? 

How much should private moral character matter with public officials?  The most brilliant bio-tech scientist is available to work on a Covid-19 vaccine. She is trans-gender and on her times off likes to attend sex clubs with 18 year olds. Or we can hire a 50 year old man who got straight Cs in chemistry and biology in college. But he teaches Sunday school. Who do you want to try and save the world? 

There is NOTHING that excuses NY Governor Andrew Cuomo's alleged behavior with women. But he did a better job in the early days of the pandemic than the former president did. And if we had a choice on who could have been president during this last year, we would choose Cuomo, moral failings and all, over the last president. At least we would have had a leader who listened to scientists, would have told people from day one to wear masks, and would have been a leader. (Yeah, we know about the nursing home scandal. And we still pick Cuomo, so save us your nasty emails). 

Would the world have been better off with Richard Nixon as president during the Cuban Missile crises or with President Kennedy, who regularly had sex with much younger women in the White House. Would Nixon have been able to stand down General Curtis LeMay who was advising a first nuclear strike on the Soviet Union? 

Would all of you who voted for Bill Clinton in 1996 over Bob Dole change your vote if you knew Clinton would be grooming a young intern for sex in the oval office in the coming years? 

We believe Wood Allen to be a genius.  His movie Crimes and Misdemeanors is one of the best films of all time, examining the same moral questions we raise here. But based on what his personal behavior has been, we have chosen not to patronize his movies for the last 20 years. But knowing what we know, we would vote for FDR and Kennedy given the chance (we voted for Dole over Clinton so no problem there). 

Henry Kissinger (former National Security Advisor and Secretary Of State in the Nixon administration for you judges under 40) famously said "Power is the ultimate aphrodisiac".  

We will end with this. Where ever you draw the line, we as a society do ourselves no favors by requiring that our leaders have higher moral standards then normal human beings do. People have affairs all the time. They are sexually indiscrete at various times in their lives.  In college, before they understood the significance of  the racist ideals it represented,  they may have gone to a party drunk in blackface.  Ted Kennedy cheated at Harvard. He cheated on his wife Joan. He was a great senator. What we -meaning Rumpole- does not want is a country and a world led by mediocre people who are morally acceptable. Give us the troubled genius anytime. Give us the great man or woman with all their personal failings, so long as they meet the moment and provide the leadership we need. 

So sharpen up those pens and send us those nasty emails about what a sexist, racist clod we are, Just be ready to accept the mediocre surgeon when your heart stops beating. 

GOOD FRIDAY COURTS ARE CLOSED

We are in full swing of the holy season. Friday is Good Friday. Sunday is Easter. Saturday is apparently just Saturday. For those of you celebrating Passover, matzo is probably getting old by now. For those of you celebrating the death and resurrection of your savior, a weekend of Church, Easter Eggs, Ham and Lamb and chocolate awaits. Friday dawned cool and sweet, a wonderful Florida spring day. 

Thursday was the first day of April. Of course there will be no court in Jackson Hospital ER rooms or in Marlin's stadium. Our post yesterday was a joke. Thursday was also opening day for Baseball. Unlike last year, stadiums were partially full of fans, totally full of hope. Every team was in the pennant race on day one (although by the end of day one, Judge Hirsch's beloved Cubs were already a game out). 

We are approaching 50% of the population being vaccinated. There are daily new reports that the vaccines provide protection against the Covid variants. While there is an uptick in numbers, that reflects the virus searching for unvaccinated hosts. The more we continue to vaccinate, the less people Covid can infect, until...like the way a prosecutor feels after a jury has returned a not guilty verdict, there are no options left for our deadly opponent and life gets back to normal. 

This is why, for the first time in fourteen months, we are calling for courts to reopen. We do not need excessive wiping down of surfaces- no covid-crews obsessively wiping railings and elevator buttons and chairs. The virus does not spread through surface contact. All we need are for all participants (judges, staff, jurors, lawyers and witnesses) to have a covid vaccine card- the "P' word that Gov Ron Denial DeSantos does not like to say- Vaccine Passport. And for everyone to still wear a mask and for administrators to keep crowds down. Continue with Zoom calendar calls. Only bring litigants to the Courthouse for evidentiary motions, change of pleas, and trials. 

Our shoes are shinned. Our suits are pressed. Our ties are just hanging waiting to be tied. 

Meanwhile enjoy this baseball opening day vignette. The first home run of the season. Miguel Cabrera's blast in the ....snow? Yup. In the snow. 

STATE COURT TRIALS TO OPEN IN UNUSED JACKSON HOSPITAL OR ROOMS AND MARLIN'S PARK!

 Necessity is the mother of invention. 

State courts need to start trying cases again. Public hospitals are doing no elective surgeries and thus have empty ORs. ORs require total disinfection to remain clean. Meanwhile Marlin's park is a big, empty venue blocks from the Courthouse. 

Covid doesn't spread outdoors especially when people are more than six feet apart and wear masks. Thus the court orders issued TODAY directing that two county court judges set up courtrooms in JMH ORs 12 and 13 starting the week of April 12, 2021. Court reporting equipment will be disinfected and installed before then, along with steel hospital tables for all parties while all participants including the judge will wear green hospital scrubs and masks.  

Meanwhile felony courts will be operating in left field, right field and between the pitcher's mound and home plate at Marlin's park. Three simultaneous trials, outside, with venires sitting- of course- in the stands, until the members are picked, while in-custody defendants will be held in the bull-pen naturally.  

No word on whether hot dogs, peanuts and beer will be served, but we say WHY NOT? It is spring time. The sun is shinning. The grass is freshly cut, and where better for a judge to work then where umpires roam? 

Everyone wanted trials, and now as we start April, they are right around the corner. We used to say "see you in court" and now we will say "see you in right field where Hammerin Hank used to be on patrol. Lets hit one out and to paraphrase the great Hall of Fame Cub Ernie Banks- "let's try two!"