WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, AND THE POPE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Sunday, April 11, 2021

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. 




Saturday, April 10, 2021

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

Friday, April 09, 2021

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!


Wednesday, April 07, 2021

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. 

Tuesday, April 06, 2021

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.


Monday, April 05, 2021

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. 

Saturday, April 03, 2021

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.