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

Saturday, January 25, 2020

FIRST SUPER BOWL UPDATE

We are eight days away from the eyes of the world turning to Miami. Well, actually Miami Gardens (Motto: "Not South Beach. Not Aventura. Not Opa Locka."). A football game will be played here. The surrounding events will make it appear that people are cheering on a group of scientists who are feverishly working to save the world from the new virus from China. Instead, it's something more important. Whether big men can move a football and whether other big men can stop them?

The Greeks had poetry and mathematics. The English- literature. The French had Renaissance and Impressionist artists. We have two hundred and fifty pound men who run like gazelles. They hit each other so hard that by the time they are forty-five they walk with canes and have mental impairment. And this we cheer with jingoistic and religious ferocity. 

And we also place wagers on this historic event. And our readers supplement their meager State salaries with our recommendations. So while we finish our analysis* of the coin flip so we can give you the deadlock best bet,  a proposition bet has crossed our purview that we cannot let pass: 

Whether 49er QB Garoppolo will throw more than 1.5 TD passes?  It pays even money Bet a dollar, win a dollar. Bet a dollar, lose a dollar and ten cents. To win this bet, Garoppolo must throw two TD passes. Yes we realize he only threw 8 passes in the NFC Championship game. And Yes we realize that the 49er Defense is stout. But this will NOT be a low scoring game and Jimmy G is going to have to open it up. Place the bet now (the number will change over the week) that G throws two TDs. 

* Our analysis of the coin flip includes weather, humidity, time, location (slight changes in the gravitational fields of the earth will affect the flight of the coin), barometric pressure which slightly affects the height of the flip and number of rotations of the coin, the actual coin design and whether there are raised surfaces which will affect the drag coefficient, the age of the person flipping the coin, whether he is left handed or right handed (we have discerned a statistical bias based on the hand used to flip the coin), the physical condition of the flipper, and the directional layout of the field (fields that run east-west affect coin flips differently than fields that run north-south). Once we obtain the variables, we run over one million computer simulations and obtain a very accurate prediction on the coin flip. Stay tuned.  


Friday, January 24, 2020

PER CURIAM AND PILLOWCASES

@Davidovalle305 has done a superb job detailing the arrest and prosecution of South Florida's notorious "pillowcase rapist". In the late 1980's, before there was Starbucks and texting and people "beeped" each other, Miami was terrorized by a rapist. Then the investigation died out and life moved on. Last week there was a break in the case and ASA Laura Adams, no stranger she to important prosecutions has been assigned the case. We could not think of a better choice. 

Check out Ovalle's Herald story here. 


DEATH PENALTY REDUX 
Just when you thought it was over, the Florida Supreme Court, in an earth shaking, law making, Supreme Court Cert in waiting per curiam opinion (literally "too embarrassed to sign our names")
receded from their Hurst opinion and decided amongst other things that Florida juries do NOT have to have to unanimously recommend death. 

This is shameful. It ignores all of the US Supreme Court precedent and direct findings that Florida's prior sentencing scheme was unconstitutional. It's mindboggling that with such a serious ruling the opinion here is issued per curiam. Shameful. 

You can read the opinion here and decide if you need to shower afterwards. 

From the decision: 

The [Supreme]  Court ultimately held that “Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional. 

...

 Nonetheless, this Court on remand concluded that Hurst v. Florida had far greater implications for Florida’s capital sentencing law.  The new rule announced in Hurst v. State was as follows:
[B]efore the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating factors, and unanimously recommend a sentence of death

...

So there we have it. Florida joins the rest of the country requiring a unanimous jury recommendation of death. Something even Texas requires. 

But it just didn't sit well with those gals and fellas in Tallahassee and points north. "Y'all can't let defendants off with some high priced fancy lawyer reasonable doubt argument. Make em prove their innocence and hang em from the nearest tree."  was pretty much the chatter in the legal and lawmaking halls of our great and educated state. 

Well, how do you get this Supreme Court to overrule the last Supreme Court? We mean we cannot have judges legislating lord forbid. They just call balls and strikes. 
Time for some legal yoga. Bend a little this way. Stretch a little that way. Give lip service to stare decisis. Expound on not overruling a recent decision lightly. Take a deep breath and feed the meat to the public that wants executions. The quicker the better. No worries about actual innocence. Don't let jurors get in the way of a good lynching. 

 Last, lest there be any doubt, we hold that our state constitution’s prohibition on cruel and unusual punishment, article I, section 17,5 does not require a unanimous jury recommendation—or any jury recommendation—before a death sentence can be imposed.

These legal conservatives are many many things. Just don't ever argue that they are philosophically consistent. They are not. When their ox is gored they do what is needed to clean up the mess, even if it means legislating from the bench. 




Thursday, January 23, 2020

FREE MICHAEL AVENATTI

You may not like him. Like Icarus he flew too close to the sun and crashed to earth. (for those robed readers who are befuddled by literary and mythology references, click here).  He's a blow-hard and he probably stole money from clients. But as everyone's favourite federal blogger David O Markus writes here in The Hill, Avenatti is being wrongly held at the notorious SHU 10-South at MCC in NYC.

MCC holds about 800 inmates. It was designed for 400. In 10 South it is freezing; the lights are kept on 24 hours a day and when the toilets break, which is often, inmates are given bags to defecate in.  

"If I described these conditions to you—filthy, freezing, no natural light, isolation so extreme that you're punished for speaking through the walls, absurd rules like prisoners not getting to see the newspapers unless they're 30 days old, secrecy so deep that people are force-fed and lawyers can be punished for describing the conditions their clients are experiencing—you'd be forgiven for thinking that this was Iran or Russia," Jeanne Theoharis, a Distinguished Professor of Political Science at Brooklyn College, told Gothamist. "But in fact this gulag exists right here in lower Manhattan."

The segregated units are horrifying and inhumane," David Patton, the executive director of Federal Defenders of New York, an organization that provides low cost or free legal help to people charged with federal crimes, told the Times. "If you wanted to intentionally design a place to drive people mad, you'd be hard-pressed to do better."

There is no reason that any defendant being charged in a  non-violent fraud case should be held in such conditions. He does not represent a danger to anyone. For those of you interested, there is a South Florida connection- Avenatti is being represented by Howard and Scott Srebnick in his nNw York criminal case. 

INVENTION OF THE WHEEL

Unless you're a Republican teacher from Kansas, you know that at some point in our history Humans came down from the trees in Africa and became hunter-gathers. We began to work together, domesticated animals, planted seeds, made weapons from stones, invented the wheel, then Twinkies, and then landed on the Moon. Sometime after that we produced Baywatch and the Pet Rock. 

The oldest indirect evidence of wheeled movement was found in the form of miniature clay wheels north of the Black Sea before 4000 B.C.

But "Stable Genius's" disagree. 
Thus our Stable Genius, the President of the United States, said yesterday in Davalos, Switzerland (Motto: "Bringing billionaires together to brag for many years") the following:

'You know, we have to protect Thomas Edison and we have to protect all of these people that - came up with originally the light bulb and-- the wheel.' 

Now we know the President is all about America first and only America first.  He has no desire to protect foreigners. Inhabitants of the Black Sea be dammed. 

So the only conclusion we have is that...Americans invented the wheel! Hooray!

The light bulb. Tang. Nestle's Quick. The silicon chip. Tinder. Chewy.com. And....THE WHEEL. 

Tuesday, January 21, 2020

ARRANT NONSENSE

We all know that Federal Court is no haven for cell phones. For many years no one could bring a phone into a federal courthouse. Now lawyers can, only after US Marshalls carefully scrutinize a Bar Card and narrow their eyes before grudgingly giving approval for the lawyer and her phone to enter the sacred grounds. One wonders what the Federal Judges are afraid of?  The President can tweet from the Situation Room at the White House, but a juror cannot Snapchat her experiences in a US District Court. So be it. Federal Judges are by their nature a bit....off? Mashugana? Something like that. 

So answer us this- with all the hostility against cell phones, why are the hallways of Federal Courts populated with....Cell Phone Chargers???
Maybe we have read them wrong. Maybe federal judges do have a sense of humor? 

ARRANT ERRORS 
CBS News reported this: 

Washington — "House Judiciary Committee Chairman Jerry Nadler, one of seven impeachment managers who will present the chamber's case against President Trump in the Senate trial, called a response to the two articles of impeachment from the president's legal team errant nonsense."
This is why Rumpole needs to be involved in the impeachment process. If for no other reason than the protect the English language. Long time and careful readers of the Blog know that utter and complete nonsense is "Arrant nonsense" not whatever came out of Chairman Nadler's pie hole. 
Errant means to stray from a proper course. So it is etymologically errant to use errant as an adjective modifying the noun nonsense. Arrant works. Errant is an error.
Whew! Being a guardian of the English language in these errant times is challenging. 

Monday, January 20, 2020

MLK 2020

We celebrate the birthday of Dr. King in the fine American tradition of honoring him on a day other than his birthday. If it's good enough for Lincoln and Washington, then it's good enough for Dr. King. 
People will sidle up to the memory of the civil rights leader by endlessly requoting his famous speeches and quotes. Blah blah blah blah "Injustice anywhere is...." . Been there and done that. 
Let's try something new. 

What if we could talk to Dr. King today? If he was somehow able to travel in time before his murder, what would he see and what would we tell him?

Here's the good news Dr. King. You will be gratified to know an African-American man was elected president twice. You need to know Dr. King that we no longer use the term "negro". We now use African-American or Black.  Women routinely run for president and sometimes they get the most votes but don't win (it's a long story). For the most part (we aren't there yet, but it's better) people hire doctors, lawyers, accountants, dentists, chefs, engineers, and mostly people in any profession without regard to race. But there are still only three black head coaches in the NFL. 

We lost the Vietnam war but somehow managed to get stronger, learning the lessons from a bitter defeat. There are more nuclear weapons, but thankfully we haven't used them since WWII. We routinely live in space and launches and splashdowns don't even make the news. Videos of kittens jumping on balls of wool get more attention than a space launch. 

Queen Elizabeth is still on the throne, but her youngest grandson just resigned from The Firm. By the way Harry (as he is called), married a divorced woman of mixed race and that is the least interesting part of the story. 

We make meat from vegetables. Fat is healthy (not being fat, that's still bad. But unbelievably, we learned that eating fat makes you thin. It's harder than it sounds.)  We eat a lot of sushi. The ramen noodles that generations of college students lived on for 69 cents a package now costs twenty bucks a bowl served in fancy restaurants. McDonalds still sells hamburgers for less than a buck. No one smokes cigarettes anymore, but young people do something called vaping. 

Here's the bad news. Your intention in going to Memphis in April of 1968 was to begin the struggle against economic inequality by supporting striking sanitation workers. You were planning a second march on Washington, this time for economic justice. You saw that the real battle for the soul of America was not racial equality, but economic equality. 

We are far away from achieving your goal.

A large percentage of Americans, White, Black, Hispanic and Asian work multiple jobs to support their families. For example, teachers routinely work a second job in a place called Starbucks selling seven dollar cups of coffee or drive what used to be called taxis for something called Uber. The thought of a one or two income household providing a home, food, healthcare, transportation and even the ability to take a vacation now and then never seemed farther away. 

Our upcoming election promises to fracture the country even more. On the right we have Republicans that have little concern for hard working Americans that just cannot make it. Super-corporations skirt the laws of tax and health care by providing jobs just a few hours under what is required for full time benefits.

 On the left we have socialist candidates that want to break up companies that have provided our country with the technological advantages that have allowed us to compete in a global economy. We don't seem to have anyone who can unite us and find common ground. And there is this weird person who runs the Seanate called Mitch McConnell. And there is an even weirder senator named Bernie Sanders who is running for president even though he just had a heart attack. 

The world is over-heating; the oceans are polluted and acidic almost beyond repair and the polar regions are melting which means coastal cities around the world will be flooded. 100 year droughts are routinely followed by 100 year floods and world leaders don't  seem to be able to agree on how to heal our planet. Some politicans flout science and evdience to wild cheers from their constituents. Xenophobia is at a peak. Things look grim. 

Video phones are real, but we don't use them a whole lot. Actually we don't talk to each other very much. We send these electronic messages called texts from phones that we carry around. Walk down the street of any city and 80% of the people are hunched over staring at their electronic devices. It's fun but it's not good. 

The news is on 24 hours a day. You can shop without ever leaving your home. There are thousands of TV channels available. The Rolling Stones are still giving concerts. Really. Yes we have done the math. They are older than Moses but rock and roll hasn't died out yet. We also have something called Rap. Remember that commercial of the Native American with a tear rolling down his eye because someone threw some garbage out of a car? Rap would make him weep uncontrollably.  

We have these really neat things called Uber- Eats, Netflix, Tinder, WhatsApp, Facebook, Twitter, Instagram and someone called Kim Khardashian.

Every city in the US has a Martin Luther King Street, Avenue, school, or other public property honoring your life and work. And of course we take a day off to celebrate your birthday. But you gave us more than you took and we still owe you more than we recognize. 

You really wouldn't recognize the place. 



Saturday, January 18, 2020

2019 SEASON CHAMPIONSHIP FOOTBALL AND IMPEACHMENT

We have four teams vying for the right to go to the Super Bowl here in North Miami, as well as two parties vying this upcoming week to fire the opening shots in the 2020 Presidential Election. 
Football first. The 

Titans versus Chiefs. Here is all Tennessee has done on its improbable run to the AFC Championship Game. They beat the team with the best defense in football in 2019 (The Cheaters of New England) and then beat the team with the best offense in football (The Ravens of Baltimore).  And they beat both teams on the road. What can't they do? Beat the Chiefs in KC. But this game should be close. KC will be without their star rookie Safety Juan Thornhill (torn ACL) and pro-bowl D Lineman Chris Jones (calf) is a game-time decision.  The Titans can run the rock even when teams stack the line to stop the run. That will keep the game close.  In week Ten Tennessee beat the Chiefs at home 35-32. It might not be that close on the road, but it should be within a TD. Tennessee +7. 

Green Bay at San Fran.  In Week 12 San Fran blew out the Pack 37-8 after jumping out to a 23-0 lead.  Second verse, same as the first. The 49'ers have the D stop Aaron Rodgers and Aaron Jones and anyone else named Aaron or otherwise on Green Bay. 7.5 seems like a lot to give up, but we are not buying into the Packers hype. It's more hope than hype, and their run stops in San Fran on Sunday. San Fran - 7.5.


PELOSI V TRUMP. 
The President travels to the Senate this week to fight impeachment charges on the road, albeit in front of a friendly crowd of Republican Senators.  Coming off a loss in the House where POTUS didn't even show up, the President employs a "spread-defense" with aging superstars Ken Starr, Alan Dersh, along with Pam Bondi and a host of others. Pelosi counters with her handpicked team of members of Congress that no one could have named three months ago. 
Pelosi needs sixty-seven votes and she cannot count on more than fifty. At Trump plus at least seventeen, it's a hard line to turn down. Take the President and the points and look for a quick victory. 


Thursday, January 16, 2020

IMPEACHMENT TRIAL BEGINS

Dateline Washington , DC, The Capitol.  
The third trial of an Impeachment of The President of the United States has begun. The Senate Sergeant at Arms started the proceedings as follows:  "Hear Ye Hear ye Hear ye! All persons are commanded to be keep silent, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against Donald John Trump, President of the United States."

House Intelligence Committee Chairman Adam Schiff then took the podium and read the articles of impeachment to the Senate.  Once done, the members of the House present were dismissed and Senate Majority Leader Mitch McConnell (R-Mars) summoned the Chief Justice of the United States to the Senate. The CJ will be sworn in by the President Pro Tempore of the Senate (literally "the oldest guy in the room"). 
Once sworn in, the CJ, pursuant to Article I, section Six of the Constitution, will swear in the members of the Senate, who will swear to do justice, according to what polls best for their re-election chances. Then, in groups of four, the senators will be called to the podium to sign and oath book, which entitles them to receive a groupon for 1/3 off all footlong Subway Subs in the Dayton, Ohio, area during the week of February 3, 2020. Upon signing the oath book, the official Senate Social Media director will record and post on Instagram the act of the Senator signing the oath book and receiving their groupon. 

Rumpole knows, and now you do as well, that there are only two times senators sign an oath book- when they are sworn in as a senator, and when they are sworn in as a juror in an impeachment trial. 

Rumor discounted: There is  no truth to the rumor being floated that as a protest against the impeachment trial, Republican senators have agreed to sign the name "William Jefferson Clinton" and/or "Alfred E Newman" in the oath book. Nor have three senators agreed to sign the names "Moe, Larry, and Curly" but this is  mostly because there was no agreement as to whether Shemp could be substituted for Curly. 

According to schedule, the Senate will then break to take up other important business of the country, including resolutions approving "National Plumbers Day" (October 19); "National Pumpernickel Bagel Day" (June 11) and a resolution approving the posting of the phrase "Don't text while driving or flying" in all Transportation Bureaus of the United States.  

We will continue with our coverage of the senate trial of Donald John Trump as events warrant.