Sunday, November 18, 2018


Spock once famously said there was an ancient Vulcan saying: "Only Nixon Could Go To China"

The lexicographic history of the phrase, for those of you born in a era of five dollar cups of coffee that just must share with the world on Instagram, Twitter, Facebook, and the like, starts by understanding that Richard Milhous Nixon- the 37th President of the United States, made his reputation as a congressman and senator from ….anyone? Bueller? anyone? California, as a strident anti-communist. He won his first seat in congress by running against ….anyone? Helen Gahagan Douglas, and infamously said "she's pink right down to her underwear." At the time, "pink" wasn't a singer, but "pink' and "red" where euphemistic terms for communists.

In the Senate Nixon was an anti-communist crusader, and rose to national prominence as he investigated state department employee Alger Hiss for being a Soviet Spy. 

Senator Nixon reviewing microfilm discovered hidden in a Pumpkin in a pumpkin patch. 

With his anti-communist credentials established, young Senator Nixon was General Eisenhower's choice for Vice President in 1952. In 1960 Nixon ran for President and lost when Senator Kennedy's father bought enough votes in Chicago to swing Illinois into the Kennedy column. 
Nixon ran for Governor of California in 1962 and lost, and gave his famous epitaph in a drunken press conference the following morning "You won't have Nixon to kick around anymore." But as someone once said, "that was fake news." 

Then came LBJ, and the Vietnam war and social unrest, and all of the sudden in 1968 a beleaguered nation turned to the law-and-order candidate, who was a strident anti-communist and had a "secret plan to end the war."

As President, Nixon secretly ordered the bombing of Cambodia, and lied about it. He ordered Haiphong Harbor mined, and tried to bomb the North Vietnamese into concessions at the peace talks. 
Watergate came and weighed down his second term. With the economy sinking at home, the streets on fire with anti-war demonstrators, Nixon, like many beleaguered presidents before and since,  looked over-seas. And he turned his gaze to Red China. 

Before 1972, the US had openly supported Taiwan as the legitimate and democratic government of all China. There was little in the way of diplomatic relations. Communist China  had supported North Vietnam in the war was an enemy. 

So Nixon went to China in February 1972. It was as bold and brilliant a move in international relations as has ever been made by a US President. Ambassadors were exchanged (including a young George Herbert Walker Bush), and the seeds were sown for China to make that backpack in your closet, the pillows and sheets on your bed, the pens and pencils erasers in the coffee cup on your desk, and the assorted tchotchkes that now are integral to our daily lives. 

The phrase "Only Nixon Could Go To China" entered the lexicon as standing for the idea that it takes a hardliner on an issue to do the opposite of his/her stated beliefs to achieve an unseen resolution to a seemingly intractable problem. 

Only Nixon Could Go To China. 
Clinton and the Crime Bill.
Eisenhower and his goodbye speech warning about the rise of the "military-industrial complex". 
Wealthy Teddy Roosevelt as a trust-buster. 

Item: President Trump has endorsed a bi-partisan sentencing reform bill
Combining new funding for anti-recidivism programs, the expansion of early-release credits for prisoners and the reduction of certain mandatory minimum sentences, the compromise bill would help shape the experiences of tens of thousands of current inmates and future offenders

Trump; who has no understanding of, inter alia, the law, crime, sentencing, social issues (we could go on, but there is a limit to the size of posts) and once infamously said the young black men who was wrongly convicted of raping a woman jogging in Central Park should still be executed. 
Trump, who calls entire races of people thugs.
Trump, who called the loyalty of a Judge into question based on his Hispanic ethnicity.  
Trump, who was successful sued by the federal government for excluding African Americans from his apartments. 
Trump, who called a caravan of refuges an invading army. 
Trump, who appeals to the basest fears of people and baits races and sexes. 
Trump is supporting a reform of sentencing. A reduction of the use of minimum mandatory sentences. An increase of funding for prisoner rehabilitation programs. 

Only Nixon could go to China

Friday, November 16, 2018




Tonight, Governor Scott, announced the appointment of three new Judges in Miami-Dade County. Scott leaves office on January 7, 2019; (maybe even earlier if he is confirmed to have won the Senate race), and he clearly wants to leave his final and lasting impressions on trial court benches throughout the State. He moved quickly to name replacements for Circuit Court Judges Stephen Millan and Ariana Farjardo Orshan and County Court Judge Wendell Graham.


Judge Bokor, age 40, has been a member of The Florida Bar for 13 years. Bokor was an Assistant County Attorney, when, in October of 2016, Scott named him to the County Court bench. Two years later and Bokor is now a Circuit Court Judge replacing Stephen Millan. Bokor had applied to open seats on the Circuit Court, 3rd DCA, and Florida Supreme Court all within the past two months.


Judge Guzman, age 48, has been a member of The Florida Bar for 21 years. Guzman was an ASA for two years, then worked for the FBI for six years as a legal advisor, followed by two years in private practice before working as a Chief Assistant Statewide Prosecutor for five years.  He was named a County Court Judge by Governor Scott in 2012. Six years later he becomes a Circuit Court judge replacing Judge Farjardo Orshan.


Lody Jean, age 40, has been a member of The Florida Bar for 14 years. Jean was born in Haiti of Lebanese decent. For the first eight years of her legal career she was employed as an ASA in Miami-Dade County. She has been in private practice for the past six years handling immigration and criminal defense matters. She is the Immediate Past President of the Haitian Lawyers Association. She replaces Judge Wendell Graham.


Congrats to Miami-Dade ASA Frank Ledee. Governor Scott named Ledee a Circuit Court Judge today in Broward County replacing Judge John Contini.

Scott named a total of ten new judges today, the four aforementioned judges as well as six others in Broward (County Judge Natasha DePrimo and Circuit Judge Gina Hawkins); 7th Circuit (Circuit Judge Christopher Ferebee, Ponte Vedra Beach); Palm Beach (County Judge Paige Hardy Gillman); 5th Circuit (Circuit Judge Gregg Jerald, Ocala); 14th Circuit (Circuit Judge Dustin Stephenson, Panama City).

Governor Scott still has ten names on his desk for two open seats on the 3rd DCA. We expect he will name those replacements sometime in the next 30 days.


Wednesday, November 14, 2018




So says the Florida Supreme Court in an opinion issued last week. (See Franklin v. State, SC14-1442, November 8, 2018).

In 1984, "at the age of 17, Arthur O’Derrell Franklin committed a series of brutal crimes against women. In each case, the female victim testified that Franklin violently attacked her, kidnapped her, drove her to a secluded area and brutally battered, raped, and robbed her while evidencing an extraordinary cruelty and a perverse enjoyment of the suffering he was inflicting." "In each of three cases, Franklin was convicted of armed kidnapping, kidnapping, armed sexual battery, sexual battery, armed robbery, robbery, and aggravated assault."

Franklin was sentenced to three 1,000 year concurrent sentences and the Parole Commission set his presumptive parole release date  in the year 2352.  Franklin, now 51 years old, has spent his entire adult life in prison.  As a result, and pursuant to Graham v. Florida, 560 U.S. 48 (2010) and its progeny, Franklin filed a 3.850 which was denied by the trial court. The First DCA affirmed.

"In Graham, 560 U.S. at 75, the Supreme Court held that the Eighth Amendment categorically forbids a sentence of life without parole for juvenile nonhomicide offenders, and required that any life sentence for a juvenile nonhomicide offender be accompanied by "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" before the end of the sentence and during the offender’s natural life."

In a 4-3 decision with Justice Lewis providing the surprising swing vote, the Florida Supreme Court approved the First District’s decision in Franklin and held that "Franklin’s 1000-year sentences with parole eligibility do not violate the categorical rule of Graham."  With their decision, our state supreme court was saying that, because Franklin's 1,000 year sentence was accompanied by "parole", the 17 year old (at the time he committed the crimes) Franklin had some meaningful opportunity to obtain release!

On Tuesday, November 6th, Election day, I wrote about the election contests that might interest our readers. The judicial contests in Dade and Broward and two of the constitutional amendments. But, the bigger point of the post, the title "Elections Matter", was clearly missed by more than a few voters.

As a result, it looks like we will be calling Ron DeSantis "Governor" for at least the next four years. That is unless the recount somehow manages to find some 33,700 more votes for Andrew Gillum.

So, it’s the decisions in cases like Franklin that we, as lawyers, and by extension, the clients we represent, have to look forward to over the next 20-30 years, or possibly even longer.

Why 20-30 years?  Because, unlike DeSantis, who may be our Governor for only four years, or at most, eight, the three Supreme Court justices he appoints, likely to be named in January of 2019, will be on our state’s highest court bench for decades.   The current make-up of the Court, with four left leaning justices includes three who will be retiring on January 8th: Justices Pariente, Lewis, and Quince.  With DeSantis' three appointments, the court will include six of seven justices who will all be Federalist Society dyed in the wool conservatives.


PS: Please join me in wishing the Justice Building Blog and Horace Rumpole a Happy 13th Birthday.  It was on November 16, 2005 that Rumpole first posted.  I was invited to join the Blog a few months later.  Today's post is the 3,599th posted over the past 13 years.  Thank you Rumpole for allowing me the opportunity of contributing to your Blog. 


Monday, November 12, 2018


One Hundred years ago this past Sunday, the guns of Europe were silenced at 11:00 a.m., on the 11th day of the 11th month, 1918. Thus ended what was known as "the great war" and "the war to end all wars". In its aftermath humanity shuddered at the losses. The numbers of dead are staggering. The British lost six thousand men on the opening day of the battle of the Somme. To place that it context, the battle of Antietam is considered the bloodiest day in American history, when 3,650 soldiers fighting for the North and South killed each other. 

There were between forty and fifty million people killed during the war. Repeat that. Forty to Fifty million people, including civilians and soldiers. 

This is the story of one: Henry Nicholas Gunther. 

Gunther was born on June 6, 1895 in Baltimore, Maryland to German immigrant parents. He grew up practicing the Catholic religion working in the service order for layman. He was trained as a bookkeeper and worked in a bank until the war. He was drafted into the 313th infantry regiment, which was part of the 157th Brigade of the 79th infantry division. The 313th was nicknamed "Baltimore's Own".  

The 313th arrived in France in July, 1918, and entered combat and engaged the enemy on September 12, 1918 in the battle of the Meuse-Argonne, which was the last major offensive of the war that broke the back of the Germany-Austria-Hungary alliance and ended the war. 

Henry Gunther was assigned to Company A of the 313th, and they fought at the front lines of the battle.  At about 10: 00 a.m., one morning, Gunther's company approached a German roadblock manned with a machine gun outside the village of Chaumont-devant-Damvillers. 

Sergeant Earnest Powell ordered Gunther to fix his bayonet and charge the Germans. Gunther did as ordered and a burst of machine gun fire struck him down and killed him. 

Gunther's death certificate lists that he died at 10:59 a.m., on November 11, 1918. Yes, Gunther was the last United States solider to die in World War I. He was twenty-three. The armistice had been signed at 5:00 a.m. the morning of November 11. It was to take effect at 11:00 am. The Germans in the roadblock were aware of the pending peace, and they tried to wave off Gunther as he charged, but he continued to charge until he was shot and killed. 

General of the Army Black-Jack Pershing mentioned Gunther on November 12, 1918, in his orders of the day as the last American to die for his country. Gunther was promoted to sergeant, and posthumously awarded the Distinguished Service Cross and the Divisional Citation for Gallantry In Action. 
Henry Nichols Gunther, a kid from Baltimore; born of immigrant parents who raised their son in their church; son, and American Solider who followed ordered and gave his life for his country so that we may enjoy the blessings of peace he and his brothers secured. He was and is an American Hero that has largely been forgotten by history. There are over  hundred thousand others like him, as the United States lost 116,708 soldiers in the Great War. 

This article is about a tale of two men. 
Henry Nicholas Gunther was the last man to die for his country when he followed orders and charged a roadblock manned with a machine gun. His unit was in action on the front lines for fifty-nine days. He fought in trenches, slept in dirt fox-holes. ate cold food, was bombed and shot at and eventually died. 

On November 11, 2018, one hundred years to the day Henry Nicholas Gunther died, the President of the United States would not leave his hotel room to attend the services and honor the dead at the Aisne  Marne American cemetery where United States soldiers who died in the brutal battle of Belleau  Woods are interred.  There is a wall in the cemetery with the names of one thousand and sixty US soldiers who went missing in the battle and whose bodies were never found. 

The reason given for the President not honoring the American dead? It was raining. 

A tale of two men. 

Sunday, November 11, 2018


How can anybody involved in some aspect of criminal law not have mixed feelings concerning the prosecution for the use of cannabis?  The juxtaposition between a widespread casual attitude yet potential for rigid punishment is frustrating and disheartening. The inconsistency as to how the law is applied, as well as the hypocrisy between attitude versus enforcement, is aggravating.   

I’m hardly a pothead or big marijuana advocate. To me, weed, is no different than pepperoni pizza, root beer, a Twix bar or any other guilty pleasure; if I had some… well, whatever… if I never touched it again… whatever.  It’s just not that big of a deal.

I grew up in the 1970’s where pot was common place. Anything associated with counter culture or a modern, hip lifestyle inevitably had a certain pot component. Most places that sold records also acted as “head shops”. Zig-Zag and Big Bamboo (rolling paper companies) tee shirts were as common as the black rock concert tee.

You went to a party… weed was there;
Attending a concert… the arena wreaked of pot;
High school… the burnouts had their place and there was smokin’ in the boys’ room.  

I would imagine that anybody under the age of 65 would have been exposed to marijuana culture.   If you grew up where there was a harsh winter, you probably hung out in friend’s basements, converted attics or locked yourself in bedrooms. And what was exactly going on there as you and your friends spun Zeppelin, Floyd, the Stones and Jimi? Of course, that is a rhetorical question since I have a feeling, I know exactly what you were doing. 

I’m not saying marijuana is a positive for it is, indeed, a vice. However, so are potato chips, soda, tobacco products and beer. “Marijuana, that’s a gateway drug, it will lead to worse things.” Really?  Don’t we all know people who were characters, stoners, a bit on the crazy side…yet they grew up to become successful business owners, professionals, community leaders, parents, etc.  Don’t most people ultimately outgrow certain vices since, as you age, you tend to lean towards the mainstream?  I have seen certain potheads gravitate towards more serious vices yet, perhaps, that was more indicative of an addictive and self-destructive personality rather than from the actual herb itself.  I have seen the all-too-common scenario of people inebriated on alcohol do very bad things while, conversely, I’ve never seen anyone getting high develop a desire to do anything but eat food out of the container and have a strong desire to watch anything that is on television.  

In most facets of today’s culture, marijuana has been pretty much stripped of a taboo reputation and more relegated to a widespread, casual attitude.  Forget about movies aimed at stoners, when mainstream flicks like “It’s Complicated” feature movie icon Meryl Streep toking, it’s hard to say pot belongs to the counter culture…that is as mainstream as you can get.  Turn on any pop radio station and you’re likely to hear many hip hop acts, The Beatles, Bob Dylan, Tom Petty, and Miley Cyrus echo the sentiments of the population. These are mainstream songs, played on mainstream radio stations where the topic is celebrated, not condemned.  Television shows like That 70’s Show, American Dad, Mad Men, Parenthood, and The Office couldn’t take a more unabashed and informal approach towards marijuana use. Today, pot is a subject matter that entertains us while the irrational days of the oft-lampooned “Reefer Madness “are long gone.

In regard to criminal law; marijuana has had an evolution in the last 50 years. Whereas a joint may expose a person to just a fine today, in the past that same amount may have triggered a lengthy prison sentence. History should be a strong barometer for trends and trajectories. With the midterm elections just concluding, and more States allowing either the medicinal use of, or the legalization, the writing is certainly on the wall. Is it inconceivable that personal use of marijuana, on a national level, will be eventually decriminalized? [Excuse me, I have to take a break from writing this post because I need to check my cannabis stocks and marijuana mutual funds.]  Yes, decriminalization is only a matter of time.    

In the criminal justice system, a case that involves marijuana use may be impacted by the individual ideologies of the players in power; the judge and prosecutor. While I’ve seen some judges take the position that they will never incarcerate over the personal use of marijuana, other judges do not echo such sentiment.  For some judges, they will have no problem having marijuana act as the sole impetus for revoking a bond or violating court supervision. Smoking a plant that grows in nature could result in incarceration?! prison?!

I have a problem with blindly just following the law. History demonstrates that there have been some very oppressive and evil laws on the books.  Wasn’t one of the recent constitutional amendments to get rid of obsolete provisions within the constitution?  Technically, it is for the legislature to enact laws but some of the most dramatic, game-changing themes have emanated out of judicial rulings (Miranda v. Arizona, Gideon v. Wainwright, Roe v Wade, Brown v. Board of Education).  Inapplicable and irrational laws need not be enforced.  As most of us were preached to during our first year in law school, “the law does not operate in a vacuum”. Don’t like that I’m a proponent for challenging laws?  Kiss my  grits, anti-black, anti-Jew, anti-women, anti-Latino, anti-immigrant …there have been some horrendous laws on the books. If someone says “Jump!” to me, I would hardly respond by saying “How high?” If the law is out of touch then somebody, in a position of power, needs to have the guts to say something. This means you…Judge.

A horribly unfair aspect of marijuana (that I never see addressed in court)  is that pot has the capacity to act as a poor man’s medication. How frighteningly out of touch is the criminal justice system? The primary political issue facing our country is access to health care. Moreover, at a lower economic level, of course these unfortunates do not have appropriate health care. However, no matter how much money may be in one’s bank account, pain, stress and anxiety are universal. With so many taking a prescribed medication to deal with stress, wouldn’t you think the less fortunate also want something to take off that same edge? That is what marijuana is to some in economically depressed areas; it is a low cost and widely available stress reliever. If a white- collared defendant has an open criminal case and they are legally prescribed Xanax to deal with their stress from the consequences of their case, then that is okay. However, if a different type of defendant (you know…poorer, darker) smoked pot (they have no insurance so they can’t get Xanax or if they illicitly acquire it, then they are subject to felony prosecution) to deal with the same stress, their bond may be revoked.  It’s maddening and, in a way, is indicative of institutional racism and illogical insensitivity.   

As there is a national trend towards the legalization of a possessory amount of weed, then there must be a judicial interpretation that mirrors what the attitude is of the public. If the public doesn’t care about weed, then why are people having their lives ruined over it? How common are acquittals on possession cases, not because there was a great defense but, quite simply, because jurors  do not want to convict over the subject matter?  

Sending somebody to prison, over merely the use of marijuana, just because the law is on the books?  “I was just following orders” is hardly an acceptable justification when addressing morality. There can be a higher order than what may be codified.  The time has come where violating a probationer over the use of marijuana is wrong, forcing treatment programs for a non-addictive substance is antiquated, mounting forfeiture actions over a joint is mean-spirited, revoking bonds (where somebody is presumed innocent) over use can turn into is an obvious ploy to squeeze out a plea and criminal prosecution is utter hypocrisy.
Outside of court, a casual attitude towards pot is almost universal yet inside of court, it is hard to predict what will occur.  One judge may admonish while another may incarcerate…it shouldn’t be that way.

As the world is always changing so does the need for the criminal justice system. Judges need to do more than call balls and strikes, the lack of uniformity on this issue absolutely results in significant injustices.  Who wearing the robe will have the guts to stand up and address this problem?

Saturday, November 10, 2018


There were two Saturday events that arguably defined the 1970's: The Saturday Night Massacre and Saturday Night Fever. One involved the twisting, physical machinations and mis-directions of individuals popular in the public's imagination....and the other involved a movie about the Disco craze. 
Considering most of our robed readers were not alive on October 20, 1973, a history lesson is in order. 

In October 1973 President Nixon was on the ropes. In the spring of 1973 Attorney General Elliott Richardson appointed Archibald Cox as the special prosecutor appointed to investigate the Watergate burglary. 

Special Prosecutor Archie Cox 
Cox soon issued a subpoena to Nixon for the tapes of White House conversations. The battle lines were drawn. On Friday October 19, 1973  Nixon offered what is now known as the "Stennis Compromise": Senator John Stennis (who was notoriously hard of hearing) would listen to the tapes and summarize them for Cox. Cox rejected the offer that same day. 

On Saturday Nixon ordered Richardson to fire Cox. Richardson refused and resigned. Nixon then ordered deputy AG William Ruckelshaus to fire Cox. Ruckelshaus refused and also resigned. Next up: Solicitor General Robert Bork who suddenly found himself to be acting Attorney General Of the United States. He woke up Saturday morning as the unknown Solicitor General. Perhaps had some coffee and a bagel and reviewed some briefs. Before midnight he was the AG of the US. In Bork's defense, both Richardson and Ruckelshaus had given their word to Congress that they would not fire Cox. Bork had not, and the order from the President was facially valid. Bork had not wanted to go down in history as the man who "did the President's bidding" but he felt he had no choice. 

The next day Nixon was caught in a lie (which was a big thing at the time for the President. No so much now). The White House had officially stated that Ruckelshaus had been fired. But the letter from Nixon to Bork stated that Ruckelshaus had resigned in protest. 

On  November 14, 1973, US District Judge Gerhard Gesell (who was born in Los Angeles to parents who were immigrants, which currently raises suspicions about his loyalty to the US)  ruled that the firing of Cox was illegal and ordered he be reinstated as special prosecutor. Nixon fought the subpoena to the supreme court, where he lost in an unanimous decision Tump v. US  (not yet)  US. v. Nixon 418 US 683 (1974). Nixon resigned in disgrace ten months after he Massacre. 

Saturday Night Fever on the other hand was a 1977 hit movie staring John Travolta detailing the life of Tony Manero,  a Brooklyn kid who spends his Saturday nights dancing at local discotheques. The movie was based on a 1976 New Yorker article by writer Nik Cohn entitled "The Tribal Rights Of The New Saturday Night."  

incent was the very best dancer in Bay Ridge—the ultimate Face. He owned fourteen floral shirts, five suits, eight pairs of shoes, three overcoats, and had appeared on American Bandstand. Sometimes music people came out from Manhattan to watch him, and one man who owned a club on the East Side had even offered him a contract.  A hundred dollars a week. Just to dance. 

Interestingly, much like Nixon and the current POTUS, Cohn acknowledged in a 1990 interview that his article was mostly a fabrication. Cohn was a Brit and he was unable to garner enough material for  his assignment to document the emerging New York Disco-Club scene. One night,  Cohn- recently arrived from London,  went to the club 2001 Odyssey in Bay Ridge,  Brooklyn, and witnessed a drunken street fight outside the club. One of the combatants fell to the curb and threw up on Cohn's leg. Cohn quickly retreated to Manhattan and thereafter fabricated most of the story, relying on characters he knew from a gang in Derry, Northern Ireland, where he had grown up. 

Wednesday, November 07, 2018


BREAKING: Chris Christie at White House to discuss AG position. We have it on good authority it's either Christie or a Dade SAO CLI interning in DUI court. This will be a good topic of discussion for those of you who bite the bullet, take a shot, and mingle with hoi polloi (which we will not be doing, as we have other plans to weed our indoor herb garden this evening) tonight as detailed below: 

It's that time of year again when the holidays are in sight, and lawyers and judges congregate for free food and drink. 

They call it a "mixer",  but oil and water do not mix. Neither does the concept of truth and Donald Trump; ketchup and oatmeal; Fox News and responsible reporting; Justice Kavanaugh and a #Metoo rally; convenient parking and the REGJB; A Judge Hirsch opinion without a citation to Moliere; Republicans and health care coverage...  you get the picture. 

So whichever side of the bench you are on, the North Korean side or the South Korean side, cross over the DMZ and share a glass of spirits with "the other side" this Thursday:

Rumpole of course will not attend. We have strict standards about who we associate with in public. 


BREAKING: Wednesday 3:00 PM. Attorney General Jeff "I hate marijuana" Sessions is O...U....T  out. 

Well, that didn't take long. 

Don't forget to take our new poll and vote for as many winners as you think appropriate.