COVID-19 ADVISORY #742,312 -

Rumpole Update: This is a comment that we received that sort of levels the playing field. Things are not always what they seem. 

Paul's e-mail is a little misleading. The judge chose to move forward with a Zoom PVH under the authority of the recent decision by the Third in the Clarington case. Mr. Cariglio objected and said that he and his client had a right to be present in the courtroom (he later also requested that the ASA be required to be present in the courtroom). After that objection and request by Mr. Cariglio, the judge ordered corrections to bring the defendant and for Mr. Cariglio to appear. Mr. Cariglio said it was not ideal but he would be willing to appear in person and also stated that he had been dining out at restaurants during the pandemic The hearing was reset so everything could be arranged. All this to say, its not giving the full picture to claim that the judge decided to conduct an in person hearing over Mr. Cariglio's objection. The judge ordered a Zoom PVH and Mr. Cariglio demanded he and his client be allowed to appear in person. None of this, however, negates the fact that the judiciary should closely examine the decision whether to conduct trials under the circumstances. 

THE CAPTAIN REPORTS:

COVID-19 ADVISORY #742,312

Regular readers of the BLOG know that we have been posting in the Comments section every time we receive one of these "advisories" from Eunice Sigler, the Communications Director for the 11th Judicial Circuit.

Today, we were alerted to some very disturbing information shared on the FACDL List Serv by Paul Petruzzi. We asked Paul for permission to re-print the information and he encouraged us to do so. Here is what Paul wrote in its entirety:

So, many of you know I share space with Jerry Cariglio. Our office also has staff and a lawyer with health conditions that place them at greater risk for serious complications were they to contract Covid. As an office, we have all been very careful to avoid exposing ourselves and then the rest of the office. Over Jerry’s objection, Judge Fernandez decided to conduct a PVH in person rather than waiting for things to become more safe. The hearing started yesterday and was to resume today. It won’t resume today because the bailiff tested positive for Covid. In the meantime, Jerry had very close contact with the bailiff for several hours yesterday and now has had contact with half the people in our office suite. I encourage the judicial powers that be in state court to rethink their current plans. Paul P.

Needless to say, the feedback on the List Serv was swift and directly to the point.  Judge Soto and Judge Sayfie need to take a long hard look at the decision to resume jury trials on March 1, 2021.  There must be an absolute standing Order signed by Chief Judge Soto that directs all Circuit and County Court Judges to permit the attorney of record to be granted a continuance if they do not feel comfortable appearing for trial in person.

This is a matter of "life and death".

CAPTAIN OUT .......

Captain4Justice@gmail.com

CONVERGENT EVOLUTION

British researchers now believe that the new British strain B1.1.7, which Dr. Fauci has already said many times will be the dominant strain in the United States next month, is not only more virulent but most likely more lethal. 

But something a little more concerning is also happening, and along the way it is further proof of Charles Darwin's Theory Of Evolution. For all you Religious-Fundamentalist-Republicans who do not believe Adam descended from Bonzo the Chimp, Covid is dealing you some serious disappointments. 

Convergent Evolution is the similar evolution of new traits in not closely related organisms. In other words non-related species can evolve similar traits based on their environment. The phenomenon has been observed in viruses and now there is evidence that strains of Covid19 in the United States are showing traits of the strains of the British and South African variants. Holy Evolution Batman! This is not good. What this means is our enemy is independently adapting throughout the world. Strains continents apart are separately and independently mutating to a new strain with similar characteristics- becoming easier to catch (because by wearing masks we have made it harder to spread) and more deadly. Covid is a worthy enemy- like a prosecutor with a confession and DNA. But as any prosecutor who has dealt with Rumpole can tell you, Covid can be beat.   

The NY Times article is here. 

The reasons for an elevated death rate are not entirely clear. Some evidence suggests that people infected with the variant may have higher viral loads, a feature that could not only make the virus more contagious but also potentially undermine the effectiveness of certain treatments...

(Note to Judges- as Bruce Springsteen sings in 10th Avenue Freeze Out "This here is the important part"*):

No matter the explanation, scientific advisers to the British government said on Saturday, the new findings laid bare the dangers of countries easing restrictions as the variant takes hold.

The overall picture is one of something like a 40 to 60 percent increase in hospitalization risk, and risk of death,” Neil Ferguson, an epidemiologist and scientific adviser to the British government, said in an interview on Saturday. Referring to the tight restrictions on socializing that are in effect across Britain, he said, “It reinforces the policy measures in place.

The CDC announced Sunday that two million Americans had been vaccinated the day before.  We are close to vaccines being available  for those of us who labour in the REGJB for our bread and wine, although it is not yet on the menu of Au Bon Pain. March 1, 2021, is NOT the time to open up the Courthouse and start trials again.  But like opening day in baseball, Memorial Day or the 4th of July or Labour Day or Thanksgiving, it is coming. Just wait a little longer please.

* Bruce  only sings that line occasionally in live shows.  It was not part of the original lyrics. 

ATTORNEY AL WILLIAMS HAS PASSED AWAY

 Al Williams, a long time fixture at the PDs office where he handled the most serious cases and mentored generations of young lawyers has died at the age of 70. Mr. Williams life is a Miami Story gone good. 

He was the second of six children born in a house on Williams Avenue in Coconut Grove. He attended George Carver Highschool and Coral Gables Highschool, a three year letterman in football and wrestling. His football team went undefeated one year, winning state and national titles and named the Florida Highschool football team of the Century, no small honor in this state. Al was an undersized 160 pound guard on the team. 

Al Williams graduated from UM Law school in 1976, joined the PDs office and spent the next 35 years defending the people of his home town. 

We did not cross paths with Al Williams much, but he was a much admired member of the Dade PDs office and started at the time when assistant PDs were named Roy Black, HT Smith, Jack Denaro, and Norm Gerstein to name a few. It was an office of current and future super-stars. 

COMING TO NETFLIX

 

Coming to Netflix this fall, a new political thriller....The Impeachments of Donald Trump.

Every season the former president will be impeached. 

Scene: Speakers Office, Capitol Hill. 8:30 pm. An aide walks in. Speaker Pelosi sits behind a large desk. She looks up from a notepad expectantly. The aide is harried and is carrying a diet coke as he flops down into a seat. His hair is matted down wet. Behind the Speaker is a window and we can see a furious rain storm beating on the windows. Thunder rumbles ominously in the background. 

Aide: "He threw a hamburger at a waiter at Mar A Lago and hit him. He ordered it well done and it came out medium well. 

Pelosi: And?

Aide: And, wait until you hear this...the waiter was an immigrant from Mexico. 

Pelosi: We may need more.

Aide: He and Melania are not sleeping in the same room. He made Lindsey Graham caddie for him during his golf round on Sunday with David Duke and the My Pillow Guy. You should have seen Graham lugging three golf bags down the fairway. He was sweating. It wasn't pretty. 

Pelosi. Hmm...

Aide. And we have this. He called Canadian Prime Minister Trudeau a wimp on DT, his new Twitter-type app.  

SCENE TWO: House of Representatives. 

Speaker Pelosi: The Chair recognizes the gentleman from Maryland, Mr. Raskin. 

Congressman Raskin: Madam Speaker. I have the high honor to introduce (again) the articles of impeachment against the former 45th President of the United States.  Article One: That within the last week the former president did maliciously, and with intent, hurl a hamburger at one Ernesto Guerra, a citizen of Mexico, striking Mr. Guerra in the arm, committing the misdemeanor of battery with a food item. Article Two: That within the last three days the former president of the United States did call the Prime Minister of Canada "a wimp and an idiot" and said that Canada was only good for "that French fries and gravy thing", and in doing so did bring disrespect to the high office of former President of the United States and did embarrass most Americans, especially those who enjoy Poutine. That such acts constitute high crimes and misdemeanors and as such the House Of Representatives are presented these articles of impeachment for consideration. 

Each season, from the acts of the former president to the house of representatives, to trial in the senate, there will be an impeachment, and a trial, ending, in high drama...ala "Who Shot JR?" with a vote in the senate coming down to the very last vote.

Casting: Meryl Streep as Nancy Pelosi, Speaker of the Housel; Jim Carrey as Lindsay Graham; Eugene Levy as Majority Leader Senator Chuck Schumer; Zack Galifianakis as Mitch McConnell; Will Ferrell as Congressman and Impeachment Manager Jaime Raskin; Jennifer Lopez as Melania Trump; Billie Ellish as Tiffany Trump- the disaffected daughter of the President;  Neil Patrick Harris as Jared Kushner;  Iggy Azalea as Ivanka Trump; Martin Short as Vice President Mike Pence; and special guest star John Lithgow as the former President. 

The Three Stooges as Trump's defense team.  Moe: Impeachment??!! why you...(finger poke at Larry who ducks, Moe hits Curly in the eyes who howls in pain, bends down and throws a hammer at Moe who ducks. The hammer hits Senator Lindsey Graham). 

Future seasons will include impeachment for cheating at golf during a round with Kim Jong Un; publishing a book MAGA that plagiarized most of John Kennedy's Profiles in Courage;  cutting the line at Mortons in West Palm Beach; threatening a Kansas Second Grade History teacher in a recorded phone call for teaching in history class that Joe Biden beat him in the 2020 election: "A lot of people are saying I won the election, nobody has seen anything like the votes I got and you know, if you keep lying to these children, you personally could be in a lot of trouble, and I know Kansas has a lot of good lawyers and you might need one..."; trying to sneak aboard Air Force One; trying to give the State of the Union Address one day before Biden is scheduled to give the speech; and finally, the revelation that in February 2021, each republican senator was sent before their vote on impeachment a coupon for half off a room at the Trump hotel in Washington DC., for the fourth of July weekend.  

WEEKEND BOND HEARING ZOOM INFO

 We try not to be informative or helpful. It ruins our stellar reputation as a scoundrel and rapscallion. 

However, as much as it pains us- you do need this information from the head honcho at FACDL- your dues at work: 

IMPORTANT INFORMATION – DO NOT SKIP THIS EMAIL

All,

 

Please see the below message from Judge Sayfie regarding Weekend and Holiday Bond Hearing Calendar:

Good afternoon,

Effective tomorrow, Saturday, February 13^th, private attorneys or other interested parties seeking access to weekend DV, Traffic, Misdemeanor or Felony Bond Hearings can do so via Zoom.

Virtual Courtroom ID: 932 0830 6120.  The hearing is in webinar format.  If you need to be heard please follow the instructions on our website, also attached, or type your request in the “chat”.

Please disseminate this information to members of your office or agency.

Agencies do agency business. The blog is what matters when it comes to dissemination. 

Kindly zoom accordingly on weekends. And remember, no cat filters!

Personally, we would immediately delete any email that arrived in our inbox with the annoying "do not skip this email" warning. Important information is best ignored. It's the minutiae that fascinates us. But then, we are contrarians who have made a good living doing  exactly the opposite of what we are told to do. When judges stand, we sit. When Judges sit,  we stand. Try it. It is a whole lot of fun. 

Meanwhile,  continue the discussion on the last post about attending trials. We love stirring up the pot and creating a ruckus. No truth to the rumor that we send every new chief judge a bottle of Maalox with the note "The first one is on us". But we should. 

THE T WORD

UPDATE: Knowledgeable individuals have told us that "no one will be forced" to try a case until they feel safe. However, that doesn't completely jive with some- admittedly- off-the-cuff remarks by judges who have told lawyers in no uncertain terms that when trials begin their case WILL BE FIRST. Even those who wear black every day have a right to be frustrated with the slow pace of  covid-19 recovery, but it would be a good idea for the Judiciary to state in no uncertain terms that while they are working hard-as they should- to get trials back on track, no lawyer or litigant will be forced to trial until they feel safe/are fully vaccinated.  

Trials are the T word. And the T word is on everyone's lips and minds. The Feds pushed back trials until May 3, and then it is only supposed to be a "single civil trial" before the indefatigable Judge Ungaro.  The State ...well suffice to say there are more rumors about State trials restarting in March than about whether the prior President will run again in 2024. Ovalle and The Herald reported an interview with Judge Soto in which she said  that jury trials will start March 1. 

Good! No, Great! Let's start jury trials right when the new, more virulent form of the virus will be the dominant strain in the United States, and Miami. 

The new strain is doubling every ten days in the US. From the NY Times: 

Federal health officials warned on Friday that a far more contagious variant of the coronavirus first identified in Britain could become the dominant source of infection in the United States by March, and would likely lead to a wrenching surge in cases and deaths that would further burden overwhelmed hospitals.

"Hi, welcome to the Richard E Gerstein Justice Building Jury Duty room. The windows do not open. In fact no windows in this building open. You will be in a court room where the windows do not open and you will be in close contact with your fellow jurors, like that person over there- the one with his mask below his nose. Yes, there is a new and more virulent strain of the virus where even wearing a mask and staying six feet away may not protect you. But we have a very serious resisting arrest with violence charge to litigate, and after a year of no trials, we just can't wait, even if that means some of you get sick and die. So feel free to use the wipes to wipe down your chair and we have complementary hand wash and Cuban Coffee. So settle in and we will take your temperature twice a day, because we do not acknowledge asymptomatic transmission of Covid." 

This is whistling in the dark. This is akin to being a lunatic president and just wishing the virus away or telling everyone it will be gone by spring, summer, or the day after the election. This is hope over science. This is wanting something more than understanding the challenges in getting what you want. This is reckless. This is dangerous. And this is wrong. 

When everyone who gets summoned to a trial- from the person sitting high up wearing black, to the clerk, court reporter, corrections officers, lawyers, litigants and witnesses have  two vaccines on board, then trials can begin. Safely. Smartly. With much less risk. 

Until then, if jury summons go out for March 1, and the powers that be start trying to march people into courtrooms who are not vaccinated to try a case, we will be shouting from the electronic mountaintops that it is wrong and dangerous. Not just into the teeth of a virus, but into the teeth of a new, more virulent strain of the virus that is just as deadly, and more easy to catch. 

The Biden administration just announced the purchase of 200 million more doses of vaccine. By the end of July the country will have 600 million doses of vaccines available, enough to vaccinate every American who doesn't believe Dr. Fauci is personally profiting off of the virus and vaccine. We are talking about waiting a few more months to save lives. 

The decision is an easy one. 

MEOW

 The greatest court hearing on Zoom in the history of Zoom court hearings. Superlatives are often overused. Not this time. 

A lawyer showed up to virtual court in the 394th district of Texas with a kitten filter turned on, the cat moving its lips and eyes, as Rod Ponton said he and his assistant were attempting to remove the filter during the court case.

Please everyone...whenever you need local counsel in Texas, Mr. Ponton is your guy. He has to be your guy. He is the greatest. We love him. This made us laugh.

And BTW- props to the Judge who was clearly doing his best not to lose it.

FACDL INFORMATION YOU DIDN'T KNOW YOU NEEDED

 One proposition bet we missed reporting was the total offensive yards of both teams versus the number of emails the president of the Miami Chapter of the FACDL would send out the Monday following the game. It is close as to which is the greater number. 

First up County Court Zoom Bench Trials. Before you overreact, lets us repeat- County Court...take a deep breath...a bench trial. So, those undersized Snook cases, expectorating on the sidewalk (more serious in days of covid then in days of lore), and disorderly intoxication cases can finally be tried. Save your gripping about the immediacy of witnesses and their reactions, put on a shirt and tie, and try those cases. Nobody wins a case by making a Snook wince on cross. That only happens in the movies (or on DOM's Podcast). 

Procedures for Zoom Bench Trials by HR on Scribd

 

Next  up are those all important procedures for DV motions -non emergency only (non-emergency...which is puzzling. Aren't all DV cases by definition an "emergency!"?) 

DV Non-Emergency Misdemeanor Motions Procedures (1) by HR on Scribd

 

And finally everything you wanted to know about Juvenile Court but were afraid to ask (which includes us...a multi-decade streak of never entering said courthouse or handling said juvenile cases)

First up, something called a Detention Shelter Rotation Calendar. Sounds intimidating. Detention and shelter cannot be good. Personally we suggest avoiding such star-chambers, whatever they may be.

Updated 2021 UCC Division Detention Shelter Rotation Calendar 1.20.21 by HR on Scribd, 

 

Next up A UCC zoom Directory. Sounds useful...Of course in law school we did much better in crim procedure than contracts which is why we ended up in criminal law. Never saw the fun in walking around quoting the UCC all the time when contracts were broken when there were Snook cases to defend. Let's see what we can remember..."An offer is an manifestation of willingness to enter into a contract, so made to another...blah blah blah"

UCC Division Zoom Directory 1.21.21 by HR on Scribd

 

And finally Your UCC Judicial Directory, Can't tell the players without a scorecard is what they used to yell outside the ball park when games were played during the day and there was no designated hitter. This is your Judge Scorecard. Revel in it and enjoy. 

UCC Division Judicial Directory FINAL Rev 1.20.21 by HR on Scribd

IMPEACHMENT 2.0

 A new week brings many expected events as we enter the second month of the second year of Covid-19. 2-2-cv19, which for all the world looks like the start of a federal civil case number, will become our new way of measuring time. 

The senate starts the second  Impeachment  of Former President 45 (FP45) on Tuesday. Between Sunday and Monday FP45 surprisingly did NOT change legal counsel, but Monday is a new day. 

Could there be any better hire for FP45 to make then the new hot name in defense? Mr. Markus? One of the best, but no longer new. Roy Black? Even less new. And neither of those two esteemed counsel could do what the nation saw on Sunday night- stop Patrick Mahomes, the new Best QB in the NFL (BQNFL).  Until the Super Bowl, the BQNFL had NEVER gone a professional game without throwing a TD pass. He had NEVER lost by double digit amounts before Sunday night. His numbers, were we dare say, Rumpole-like. 

Enter Tampa Bay defensive coordinate Todd Bowles who figured out a way to stop the vaunted Kansas City Offense. Their stars were silent. There is a missing wide-receivers report for NFL star Tyreek Hill. He was last seen Sunday afternoon warming up in Tampa Bay. 

Could there be a better pick for the defense team of FP45 then Todd Bowles? Maybe he can shut down Chuck Schumer et al., the way he shut down Patrick Mahomes.

On the virus front, the new variants may well be the back wall of the hurricane as this CNN report speculates.   We are now in a race- get a majority of the US public vaccinated before the variants can take hold in this country and spread like wildfire. Of course in this race we are starting one year behind, the one year being the time FP45 fiddled while the virus burned. Remember how FP45 and his minions including Florida Senator  (R-sniveling wimp) confidently predicted the virus would disappear the day after the election? As Dr. Fauci keeps chanting, a virus cannot mutate if it cannot replicate. A virus cannot replicate if it cannot find a host. Thus the need to jet jabbed. 

Judge Sayfie is soon to take the reins as the CJ of the Miami-Dade County system. Her first hard call will be when to open up the courts for trials. She knows our feelings. We will give her a few days to get settled into her new digs before we start beating the drums on no jury trials until most of us are vaccinated and the Florida new infection numbers drop into the double digits. 

Meanwhile, how many days until pitchers and catchers report? It was a great NFL season. In many ways it helped save 2020 for a lot of us. Congrats to Tom Brady, who may well be the figure we have disparaged more on this blog than Judges. He is great. He proved it last night. OK? We said it.  Now lets hope the Dolphins trade Tua for Watson. 

SUPER BOWL SUNDAY 2021

 Let us get this right out of the way. The Kansas City Chiefs should win the game. They are the better team with the better quarterback. They are well coached and they are blistering fast on offense and defense. Yes they have some holes, and Tampa might, just might be able to exploit those issues. The largest problem for KC is that their offensive line is decimated. It is a patchwork of replacement players,  and in the battle between the Bucs' D-Line and KC's O-line, give the edge to Tampa. Ditto the running game. But that is where it ends. KC has the better secondary, the better wide receivers and currently the best quarterback in the game. If you want a safe bet, take KC -3. KC Should win by between 5-10 points. 

Which is why we are betting Tampa and the money line +140. Bet a hundred on a QB making his unprecedented tenth! super bowl appearance to win 140 sounds like a fun way to spend a Sunday evening. Throw in that we really like Tampa Coach Bruce Arians and Offensive Coordinator Lord Byron Leftwich, and we are happy rooting for an upset, despite the cheater leading the Bucs. The whole "Lion in winter" story line has always been appealing to us. 

Now let's get to the real fun. Here are the proposition bets we like: 

Brady throwing over 295.5 yards: -115. Brady has bought into the Arian's concept of the deep ball this season. Lay the 115 to win 100. 

Chief's TE Travis Kelce scoring a TD: -162. It is a lot of vig to give, but he is a fav target of Mahomes.

Over 2.5 players to attempt a pass: +165. You're betting someone other than Brady or Mahomes tosses the pigskin just once. This is a fun one to root for and have 100 bucks on. 

First scoring play: Bucs field goal +430; KC Field Goal +420. 1,000 on Tampa returns 4,300 (4.3 to 1).  That would pay for some nice Covid stay-at-home wines. 

First turnover will be a fumble +140, interception -160. In a pass intensive game we love the INT bet- lay the 160 to win 100. 

First Half Tampa +2 1/2.  KC is a classic slow starter and a great come from behind team. Brady knows the value of a strong start. Take the Bucs +2.5 for the first half. 

First player to score a TD- It is time for Antonio Brown to pay off for the Bucs. Brady asked that he be signed by Tampa and this sweet 20-1 bet pays a cool 2K for a hundred dollar wager. TB to AB for 2k. 

KC total rushing yards 9.5 yards (-110) versus the final round score of golfer Xander Schauffele on Sunday at the Waste Management Phoenix Open. KC runs for about 95 yards a game. Schauffele has averaged 68.5 on the tour this year. So even subtracting 9.5 yards from KC's total rush yards, the Chiefs should rush for more yards than Schauffele's final score unless Tampa shuts down KC's running game and Schauffele implodes. Neither result is likely. Lay 110 to win a hundred KC's running game tops the golfer. UPDATE- Schauffele shot a 69. So now the bet is will the Chiefs rush for more than 69 yards after 9.5 yards are deduced from their final total? 

Total first half points vs total points for NBA back to back MVP Giannis Antetokounmpo's  in the Bucks v. Cavs game. The line says the first half total should be between 27-28 points. GA has been averaging 28 points a game this year. Throw out one or two outlier low scoring games and he is averaging 30 a game. We think the first half will be tight. Take GA -115 over the first half total. 

Trump impeachments vs. Mahomes' Super Bowl MVP awards through 2025. Trump has already been impeached twice. Mahomes has one MVP. For Mahomes to win this bet, he will have to win the MVP today and return to the Super Bowl again before 2025 AND win a third MVP. Take Trump -160 and his two impeachments over Mahomes SB MVP totals before 2025 +210. (Note this is a Rumpole bet. No one else we know has this prop bet.) 

Other Rumpole Prop Bets: 

Number of Justice Building trials before May 1, 2021, vs. number of TD passes Mahomes throws today. If, like us, you think the new strain of covid will hit harder before we are all vaccinated, then take Mahomes. But remember that our new CJ is committed to starting jury trials as soon as safely ("Sayfiely"?) possible. Mahomes -180 v. Sayfie +120. Our pick is Mahomes. 

Days until it is formally announced Judge De La O is the new chief administrative Judge for the REGJB vs. longest FG yardage minus shortest FG yardage. So lets say the longest field goal is 50 yards, and the shortest field goal is 20. 50-20=30. Will De La O be named new admin Judge for the REGJB over or under the longest FG- shortest FG?   Over +125, Under-160. We think Under. We think it will be a very short time before De La O is the new CJ for the criminal division. If this has already occurred then the bet is off the board.

Number of total TDs (run or passes) +175 vs. number of PCA opinions released by the 3rd DCA this Wednesday (-120). The 3rd DCA is the favorite to PCA more cases than the total number of TDs scored in the super bowl. 

 COIN TOSS

And of course our dead-lock-solid- never lose heads or tails bet. Tails has won 7 of the last 8 super bowls and that matters not. Coins have no memory. The wind speed at the time of the flip (approximately 4mph), the relative humidity, the number of anticipated rotations of the coin, and the relative strength of the coin-flipper (RSCF) all have been factored into our patented super bowl coin flip simulation software (SCFSS), our calculation of the Geodesic Deviation of the longitude and latitude of Raymond James Stadium in Tampa,  and after roughly 5.9 million simulation runs of the coin flip,  we are fairly sure that the coin will land......... _______ (tune in before the flip for the answer).  

TAILS

GREATEST ZOOM MEETING EVER

Before we get to the topic at hand, we are mindful of tomorrow's super bowl. We have our massive computer model generating humidity, wind speed, left or right hand of the referee flipping the coin- the out come of this ref-'s last two years of coin flips; the weight of the coin, the variations in gravity in Tampa vis a vis other places on earth. We are close to a call on our deadlock, never wrong coin flip for the Super Bowl prediction. More on Sunday. For today we LOVE this prop bet- -135 that either team goes for it and succeeds on fourth down. To explain how money line bets work, the operative figure is 100. So for minus 135 a bettor has to bet 135 to win 100 that Tampa Bay goes for it on fourth down and makes it. Or makes the same bet on KC. There is a ton of vig in this bet- 35% (35 dollars above the 100 has to be risked to win 100) but we like it. For today put us on Tampa Brady's -135 to go for a fourth down and make it. 

HANFORD PARISH COUNCIL MEETING

Even in the time of Covid we can have best-ever lists. And the BEST EVER Zoom meeting occurred in our beloved England, specifically the tiny English hamlet of Handford Parish and the city council meeting this past December.  It has made an international star of Chief Executive Jackie Weaver who is not a member of the council but was brought in to support Hanford Parish because of an issue in the last meeting where apparently the cantankerous chairman, who starts off in the video attacking Ms. Weaver, was thrown out of the previous meeting (spoiler alert- he gets tossed again here as well).  In 80 unforgettable minutes there are toilet flushes, microphone failures, Trump-like grabs for power, zoom expulsions, shouting matches as only the polite English can do, whispers of secrets that are overheard and broadcast to the world. "When do we plan to start" asks a member? "F-off" comes a mumbled reply in the first twenty seconds of the video.

At 50 seconds the chairman talks about being thrown out of the prior meeting, in response to which one member mutters "quite rightly". Now things start heating up. A debate about the legality of Jackie Weaver being a clark or proper officer ensues. At 2:27 the chairman, his anger rising tells Jackie Weaver to listen and "stop being whatever you're trying to be and just clark the meeting." 

At about 3:05 in the Video one of the other members takes a call with her microphone open as the chairman is shouting at Jackie Weaver. There is a rancorous discussion about "clarking" the meeting, which in English terms means being the clerk. 

At 3:28 someone mutters "who is this woman?" referring to Ms. Weaver, then someone gasps. 

At 3:41 the chairman growls about the meeting not being being lawfully called. Ms. Weaver then threatens to remove the chairman, which prompts the chairman to respond that only the chairman can remove someone. Another woman chimes in "you can't!" and the chairman at 4:00 continues with "You have no authority here Jackie Weaver...no authority at all! This is what is called tempting fate, because a few seconds later he disappears and other members gasp "She just kicked him out!"  

 Weaver is attacked with accusations of a coup. At 4:20, in response to Jackie Weaver patiently telling the remaining council members to elect another chairman,  the vice-chair yells,  " No you can't the vice-chair is here, I take charge!"- bringing to mind former secretary of State General Al Haig's power grab at the White House during the confusing early minutes after President Reagan was shot. The vice chair then screams "read the standing orders! Read them and understand them!" which prompts member David Pincombe to moan "dear me" and Jackie Weaver to describe it as "appalling behavior." 

Enter Council member David Burkall who shouts that there is a chairman and Jackie Weaver, in her best British school-marm voice and attitude sighs "Councilor Burkhall, we have been all through this" which in turn prompts councilor Burkhall to retort "What are you talking about? You don't know what you are talking about" which in turn prompts Councilor John Smith at 5:05 to laugh in manner that should immediately get him offers to play the Joker in the next Batman movie. At 5:15, in an argument sure to appeal to most Miami Judges because of its logic,  Burkhall exclaims "The chairman of the council is the uh..chairman of the council!'

    At 5:25 another charming white haired British matron asks if the members can "Be respectful to Jackie Weaver please" which causes another Joker-type laugh from Smith and another cohort. There are condo board members in Hallandale that are shaking their heads at the confusion and rancor of this meeting.   The result of all this is that Jackie Weaver then kicks out council member Burkhall. 

At 7:15 as the meeting is underway, someone uses the loo, and there is a corresponding loud flush. 

At 7:35 Council member Ian Smith has an issue. He struggles to explain what happened to the chairman (Jackie gave him the boot) before resorting to the refined British phrase "Before the chairman departed from the meeting I noticed his label said 'Clark of Hanford Parish Council', could anyone clarify how that came about?" 

John Smith responded that he had no idea how that occurred and that the chairman was not the Clark, prompting Ian Smith to respond that he also had an email from the chairman declaring himself as the Clark. Jackie Weaver responds that there is nothing to stop the chairman from calling himself Clark, at which point the meeting dives into the bizarre as Jackie Weaver says "please refer to me as Britany Spears from now on" before asking if she should allow the disruptive members she placed in the waiting room to return? This is something the other council members are very much against and the banished members remained locked out as one council member trashes the household of another for laughing "like a hyena." Although one member of the public who was mistakenly banished was then let back in, or as he says "I was on the naughty step". 

It is all so very British which as longtime and careful readers know, appeals to our sensibilities. Rest assured we will now be watching every meeting of the Handford Parish Council meetings. Must see TV. 

TIME TO KILL THE CONTEMPORANEOUS OBJECTION RULE

 We are a legal blog, so sometimes we have to talk about legal stuff. Robed readers can take the day off and click here. 

 Commonly referred to as the contemporaneous objection rule, the rationale for its application is two-fold: 1) to require an objection at the time the error is committed to give the trial court the opportunity to correct it; and 2) to prevent a litigant from allowing an error to go unchallenged so it may be used as a tactical advantage later. 

F.B. v. State, 852 So.2d 226 (Fla.2003).

We are going to use a technical legal term here so bear with us. Bullshit. 

99.99% of un-objected to errors occur because the defense attorney is incompetent. They whine that they do not want to draw attention to the issue or have the jury become angry at them. So while prosecutors give closing arguments where they thunder that "a leopard doesn't change it's spots" or ridicule the defense attorneys as hired guns interested in protecting the guilty for a fee, defense lawyers sit quietly as a mouse and the error is not preserved. 

Rumpole's First Rule of Trials: OBJECT. AND OBJECT AGAIN. AND AGAIN AND AGAIN. Let us disabuse you of a notion. No defendant was ever convicted because a jury, during deliberations, all agreed that the defendant was not guilty but the defense attorney made such a pain of herself by objecting that they decided to find the defendant guilty. 

Here is the effect of not objecting to clearly improper arguments or inadmissible evidence, or sitting silently as your client's confession is introduced after litigating a motion to suppress for five days- the appellate court has to find fundamental error. 

Fundamental error has been defined that error that strikes at the heart of the verdict such that a guilty verdict cannot be obtained without the error. Let us define for you the real appellate standard for fundamental error: The Fundamental error standard cannot be reached unless the defense attorney wins Powerball AND Mega-millions in the same week...twice in the same month, but only when the month ends in R AND there are two full moons within the 30 days of the month (which is what a blue moon is). Only if all those things occur, can an appellate court find fundamental error. 

In other words, appellate courts enforce the contemporaneous objection rule to avoid the landslide of reversals if they decided the case on the error alone and not whether it was preserved. 

Is it really fair to uphold a 20, 20, 40 year or life sentence when the prosecutor engaged in misconduct, or the judge let in inadmissible evidence? Is it justice to affirm a conviction with horrific error only because of this ancient and outmoded belief that without the contemporaneous objection rule defense attorneys would sit quietly when they see error? As if judges listen to us when we complain. They don't. Our objections fall mostly on deaf and D---b ears. 

Look at the hundreds of Florida criminal cases affirmed where the appellate court writes that the error was substantial but not preserved and if only there had been an objection the defendant would have gotten a new trial. This is a pandemic that has been raging for decades with no end or vaccine in sight. 

Its been decades since appellate courts started enforcing the contemporaneous objection rule and yet idiot and untrained defense attorneys still  sit quietly while prosecutors call their clients "modern day Al Capones", etc. The reason for the rule has failed. It has not promoted defense attorneys to do their job and object. As they say in infomercials, There Must Be A Better Way!

You want to get defense attorneys to object? Suspend them for a month if the appellate court finds a substantial error was not objected to. Or fine them $1,000 per error that was not objected to.  That will bring our colleagues to their feet in a hurry. But to punish a defendant with a loss of their freedom for most of their life because they have a lawyer who was too stupid to object is to undermine the fundamental principles of a fair jury trial. It is resorting to the type of bureaucratic red-tape morass that bogged down Soviet Russia. It is technocratic adjudication with a loyalty to form over substance. It is the recognition that defendants who enter the system are on a conveyor belt of "justice" that ends with them in prison 99% of the time unless they fall off the conveyor belt by having a lawyer who objects at trial (or if they hire us). 

The contemporaneous objection rule is a shame. It is a disgrace and it is the dirty little secret of the American Legal System. 

But how do we really feel? 

HERE YE, HERE YE, ALL RISE FOR OUR NEW CHIEF JUDGE, NUSHIN SAYFIE

THE CAPTAIN REPORTS:

JUDGE NUSHIN SAYFIE ELECTED TODAY AS OUR NEXT CHIEF JUDGE .......

From the 11th Judicial Circuit’s Press Release:

The Eleventh Judicial Circuit is pleased to announce that the Honorable Nushin G. Sayfie, currently the Administrative Judge of the Circuit Criminal Division, has been elected Chief Judge of the Eleventh Judicial Circuit, the Miami-Dade Courts.

Chief Judge-Elect Sayfie succeeds the Honorable Bertila Soto, who has served as Chief Judge since April 2013 for four full terms. Her current term will expire on June 30, 2021. Chief Judge-Elect Sayfie will assume her new post on July 1, 2021.

Chief Judge-Elect Sayfie was first appointed to the Circuit Court by Gov. Charlie Crist in 2007. Prior to her appointment to the Bench, she served as an assistant public defender with the Miami-Dade Public Defender’s Office since July,1994, where she rose in rank to eventually train and supervise other lawyers in the Felony Division.

She began her judicial career in the Miami-Dade Courts’ Juvenile Dependency Division, then transferred to the Circuit Criminal Division in 2009 and was subsequently appointed Associate Administrative Judge in July 2011, and Administrative Judge in March 2013. She was reelected as a Circuit Court judge in 2010 and 2016 without opposition.

Congratulations to Judge Sayfie on a well deserved honor. 

CAPTAIN OUT .......

Captain4Justice@gmail.com

Q IS FOR LOSERS

 Despite being known for our sunny disposition and indefatigable spirit, we present to our loyal readers the latest edition of    "WE'RE DOOMED" (C) Justice Building Blog and Rumpole, 2021 all rights and wrongs reserved. 

The next time you're picking a jury with a venire of 50 members (stretch your imagination a little) know that 8 or 9 of them believe that "a group of Satan-worshiping elites who run a child sex ring are trying to control our politics." 17 of them "believe that voter fraud helped Joe Biden win the 2020 election." Source: NPR/Ipsos Poll.   The numbers are even higher if you include those perpetually scowling individuals who are so insecure they put their chairs a bit higher than everyone else and always wear black. (No post is good without a gratuitous shot at the judiciary). At least a 145 Republican Congressmen and women (and one complete lunatic) believe the Joe Biden-Democrats-stole-the-election- conspiracy theory. 

The scary part of conspiracy theorists is that they have lost all capacity for rational thought. One study found that "the more participants believed Bin Laden was dead before special forces killed him, the more they also believed he was still alive." Ditto with those who believed Princes Diana was murdered, and is also still alive. Elvis has left the building...in a coffin...but eating a peanut butter and banana sandwich. 

What should be no surprise is that study after study shows that losers are the ones who drawn to conspiracy theories. See American Conspiracy Theories, by Uscinski and Parent. That is why Trump, who lost the popular vote in 2016 was a conspiracy theorist from the beginning of his misbegotten presidency. People who are downtrodden, uneducated, and not introspective buy into conspiracy theories. Rather than look at their own short comings, they look for anything else to explain their losses and their lack of success. A recent Pew poll found 75% of Trump votes believed Trump won the recent election. Trump voters are losers, in more ways than one.  Losers need conspiracy theories to explain their losses when they cannot accept their own shortcomings. 

Fear also drives conspiracy theories. Take masks. Masks are the symbol of Covid-19.  Covid 19 cannot be seen with the naked eye. Fear is the root of most anger. For a certain percentage of people who are the most afraid of something that they cannot see or understand, the embodiment of that hidden monster- the Mask- becomes the focal point of their anger. Logically masks would keep the most fearful safe. But some people need a way to vent their fear. It is the same counter-intuitive reason why some people who are afraid of heights get an almost uncontrollable urge to jump from a ski lift. 

 So here is where we sit in 2021. 17% of the American Public believe certain high-level democrats engage in pedophilia and Satan worshipping. Most of the Republican party believes Ted Cruz's father was part of the plot to kill President Kennedy. Republicans elect members to Congress who assault children who were shot and want to kill Nancy Pelosi. They believe that Jewish Bankers control lasers from space and that Barack Obama was spirited from his birth place in Africa because on the night of his birth a star appeared foretelling his ascendency to the Presidency if only his US citizenship could be faked. John Lewis or Sam Rayburn or Tip O'Neil they are not. 

Rather than rally to a tough fight, Covid has caused our country-men  and women to lose their minds. We are doomed. 

We are doomed, especially when most of the criminal defense attorneys in Miami believe a certain blog is written by a cabal of ex-members of England's Queen Council trying to make Miami Vegan, communist, and fueled by solar power. 

OUR FOUNDING MEMBER OF THE WE ARE DOOMED SOCIETY:

Now excuse us while we call our Banker Schwartz to start a fire in Broward. "Aim the laser at the courthouse on 17th street...." 

IMPEACHMENT!

 Ah the "I" word. It is more than you think, as this edition of the right and Hon. Judge M. Hirsch's Constitutional Calendar teaches: 

Thomas Jefferson swept into presidential office determined to purge the federal judiciary of the Federalist judges appointed by his two predecessors.  His weapon would be impeachment.  He would start with the low-hanging fruit and, he hoped, work his way up to the greatest prize of all: his bitter antagonist and distant kinsman, Chief Justice John Marshall.  

The very lowest-hanging fruit was John Pickering of the U.S. District Court for the District of New Hampshire.  Pickering, once a leading member of the bar and the author of his state's constitution, had degenerated into dementia and alcoholism.  On February 4, 1803, the president transmitted certain "letters and affidavits" to the House of Representatives with his encouragement that impeachment proceedings be instituted.  They were.

Trial before the Senate began on March 4, 1804.  But the Senate was immediately presented with a problem of constitutional interpretation.  Impeachment required that Pickering, like anyone to be impeached, be guilty of high crimes and misdemeanors.  The evidence that at all times material Pickering was insane and incapable of forming the intent to commit any crime was irrefutable.  In an ordinary criminal proceeding, this would render conviction impossible.  But surely Pickering was not entitled to remain in office as a United States district judge because he was too demented to form criminal intent.

The senators reconciled themselves to the notion that the "misdemeanors" referred to in the demised constitutional provision did not, or did not necessarily, refer to criminal misdemeanors, but was simply a catch-all phrase for misbehavior inconsistent with the duties of office.  On that basis, Pickering was convicted.  

HAPPY BIRTHDAY AYN RAND

 "My philosophy, in essence, is the concept of man as a heroic being, with his own happiness as the moral purpose of his life, with productive achievement as his noblest activity, & reason as his only absolute."

Ayn Rand

February 2, 1905- March 2, 1982.

BREAKING FBI SHOOTOUT

 This is a breaking story. FBI agents serving a search warrant in a child pornography case Tuesday morning in Sunrise were shot. One agent is confirmed dead. Two are wounded. 

Ovalle and the Herald have the breaking story here. 

This is a tragedy and reminds us that although we are often adversaries in case, we depend on law enforcement to do their job in a professional manner and keep our communities safe. 

We can never hear about an FBI shootout in South Florida without thinking of this famous Miami shootout in 1986 in Pinecrest in which two FBI agents- Jerry Dove and Benjamin Grogan - were killed. One of Dove's bullets hit a suspect in the chest and just missed his heart. FBI agent Ed Mireles was a hero: returning fire with his 357 magnum, rushing the suspects' vehicle and killing both of them.  Miami- Dade Officer Martin Heckman, responding to the scene, was also a hero, covering the body of FBI agent McNeil with his own body while firing at the suspects. McNeil, who survived, had been paralyzed by a gunshot wound. 

The 1986 Miami Shootout was notable because of the realization that while the FBI agents outnumbered the suspects 8-2, the suspects had automatic weapons while most of the agents carried six shot revolvers. The tragedy was instrumental in the FBI and Miami law enforcement changing to semi-automatic firearms as standard issue.  

BROWARD ASA LIST

 There are things you should not do. 

You don't tug on Superman's cape. 

You don't spit into the wind. 

You don't pull the mask off the old Lone Ranger

And you don't take cases in Broward if you're smart and enjoy your mental health. 

In Dante Alighieri's Inferno, part of the Devine Comedy, the Eighth Rung of Hell is Malebolge, which translates to "evil ditches" which in our  case are what  those fortresses of Courthouses, new and old, are resting on  North of the Dade Border. 

But if you insist on self punishment, misery, walking into the place where everybody doesn't know your name and doesn't care to, then we have been sent this updated list of the ASA's who skulk the hallways looking for some Dade lawyer to offer ten years on a third degree felony where your client has no priors. 

"Enjoy" (cough cough):

State Divisions Jan 25 by HR on Scribd

THREE STEPS FORWARD

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

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

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

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

The answer is "not very soon your honor." 

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

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

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

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

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

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

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

JOHNSON AND JOHNSON NEWS

 "We are all worms. However, I do believe I am a glow-worm".  Winston Spencer Churchill. on humanity's  morality and his. 

JNJ reported on their vaccine today. Overall 72% effective in reducing mortality and severe Covid infections in the US,  66% in Latin America, and 57% in Afirca. The efficacy rate  is below the magic 95% number of Pfizer and Moderna.  The real number is in the details, so pay attention.  Pfizer and Moderna did not test overseas and did not test during the spread of the new Covid variants.  We do not have much data on how effective their vaccines are in the current and rapidly changing enviroment. 

The OVERALL effective rate for the JnJ jab  in preventing infection is 85%, well above the CDC guidelines for approval of any vaccine. The number is also 85% worldwide in preventing severe disease that requires hospitalization. 

What to make of this? It is good news. It is a one shot vaccine in which one billion doses can be distributed and injected in 2021. One billion doses. It does not need to be chilled below normal refrigeration.  It is a game changer. The vaccine appears to INCREASE immunity over time due to the operation of certain cellular biology that you dear reader, do not need to be bored with. 

JnJ will be filing an EUA (emergency use authorization) with the FDA next week. The phase three results on a two-dose regimen, which may well approach or exceed 95% will be released within the next two week. 

What we know about the Pfizer and Moderna vaccines from Israel where 40% of the population has been vaccinated is that the first round of numbers show a protection rate approaching 99%. For example in one population study of over 200,000 people, less than 20 contracted Covid. The point is that as the JnJ vaccine is released and data from hundreds of thousands of people is analyzed, the efficacy rate will rise, if for no other reason that as more and more of the population is vaccinated or recovers from an infection the R transmission rate will continue to fall below that all important 1 number, meaning for every person infected, less than one person gets the disease from that new infection. This is how pandemics burn out. 

Rumpole says, if you are offered the JnJ vaccine, TAKE IT. Please. If we get the JnJ vaccine, we will be ready to try our backlog of cases the following week (wearing a mask). We will take 75% protection, and wearing a mask that is 95% effective, in a world where most of the people we come into contact with are either vaccinated, have immunity from a prior infection, or both. The news is good once we get a better roll-out. 

We have some thoughts about US Congress representatives who advocate shooting and killing other members of the House and who harass children who survived school shootings. That will come shortly after we finish our legal obligations for the day.