JUSTICE BUILDING BLOG

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. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM. Winner of the prestigious Cushing Left Anterior Descending Artery Award.

Thursday, December 01, 2022

SPECIAL MASTER DISASTER

 While not calling the SDFL Judge who appointed a special master to oversee the government's seizure of documents from an elderly Florida retiree's home "a loose Cannon" - the 11th Circuit Court of Appeals (Motto: "Proudly ruling for the government since the old 5th Circuit was disbanded") STRUCK DOWN Judge Aileen Cannon's decision to appoint a special master in the case involving the government's search of the 45th President's home and club in West Palm, Beach. 

"We are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents. We choose the first option so the case must be dismissed." 

11th Circuit Special Master by Anonymous PbHV4H on Scribd

Give the 111th some props for being honest and consistent. Go with their motto and always rule for the government; rule for defendants and let the genie out of the bottle on every search warrant; or create a Trump exception. They went with the usual and comfortable route of denying relief to a target of a federal investigation. Appointed for life, the former president's threats are meaningless to judges who are going no higher than they already are. 



Wednesday, November 30, 2022

US V TEXAS

 The Alamo it was not when the US Supreme Court (motto: "Not political unless it's abortion or gun rights") heard the case of US v. Texas this week. On the docket was the order of US District Court Judge Drew Tipton of Texas. A Trump appointee who has been on the bench two years, Tipton is a throwback to the activist Judges of the 1960s when Judges took over school districts to enforce desegregation. Tipton's activist rulings have a right wing (lunatic) bent.  In July, Tipton assumed partial control of Homeland Security and ICE, mandating that law enforcement officials strictly and without any discretion, enforce two federal laws stating that the government  "shall take into custody" certain illegal immigrants and "shall remove within 90 days" those individuals from the United States. 

But as we noted, coincidentally on the blog earlier this week, judges do not make arrest or charging decisions (much to the chagrin of at least one Judge in Texas and one in Miami).  Judge Tipton was reading the law to require ICE to act in every case that met the criteria of federal law. It was as if Officer Friendly who stopped you for going five miles over the speed limit had no discretion to issue a warning rather than a ticket. As Justices Kavanaugh and Roberts noted at the OA- the government does not have the funding or staff to do what Tipton ordered.  Kavanaugh noted "resource constraints", as the DOJ said they had resources to process about 400,000 of the potentially 11 million people who fit within Tipton's order. Roberts called following Tipton's order "impossible" for the government to follow. That led us to ponder arguing the "Robert's Doctrine" the next time we are in trial: "Mr. Rumpole I have sustained the prosecution's objection. Please move on."  "Sorry Judge. That's impossible for us." 

Tipton's rather simplistic and sophomoric legal reasoning also ignored legal precedent- something right wing judges are wont to do in the face of political goals. See eg., Dobbs v. Jackson overruling Roe v. Wade. 

In Heckler v Cheney, the Supreme Court held in 1985 that "an agency's decision not to prosecute or enforce...is a decision generally committed to an agency's absolute discretion".  The court noted that the principle was rooted in "no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement." The limited role of the judiciary, in all its glory, except in Texas, Miami and for certain right wing judges with political agendas.  In Railroad Company v. Hecht, in 1877 the Court held that law enforcement officers can ignore a legislative command that they "shall arrest" a certain class of people (like snippy legal bloggers in Miami) : "as against the government, the word 'shall' when used in statutes, is construed as 'may'..." 

In other words, Congress can authorize Officer Friendly to write the ticket, but not force him to do so. 

Miami Judges can scowl and shake their head in disgust during the once in a decade event when prosecutors agree to a motion to dismiss, but they cannot file lesser included charges. 

And Texas Trump Judges cannot force ICE to deport everyone who doesn't look American to them. 


Tuesday, November 29, 2022

USA V IRAN

 In January 1979, Mohammad Reza Pahlavi left his home and never returned. Pahlavi, also known as the Shah of Iran was deposed by the religious clerics of Iran, including Ayatollah Ruhollah Khomeini.  Iran and Iranians were plunged into the dark ages, where women cannot show their face in public and have little rights. Homosexuals are persecuted, prosecuted and killed. Religion trumps reason and science and a cult personality rules without democracy. Seems familiar in way, doesn't it? 

But back in 1979, a young Rumpole in high school woke up one day no longer the top science, mathematics, physics, and chemistry student in his high school. The educated middle and upper class fled Iran, and all of a sudden there were 25 or more students in Rumpole's high school speaking Farsi, and doing differential equations in AP calculus and Rumpole was put out not to say the least. 

Thus began Rumpole's lifelong interest in Iran and the Iranian people, not to mention his ability to curse fluently in Farsi, which once sent an AUSA in California in a loop, when during a break in a heated trial Rumpole told him in Farsi that he smelled and needed to take a shower. 

Today the USA and Iranian football/soccer teams meet on the pitch in Qatar during a world cup match. The winner will advance to the knockout round of 16 and the loser will return home. 

Persia and Iran are the seat of history, education, religion, and humanity. Learn to separate the wonderful Iranian people from Iran and its lunatic religious rulers. We did in 1979 and formed long lasting friendships. 

While we are rooting for the USA, we are also rooting for the Iranian players, whose refusal to sing the national anthem at the start of their first match in this world cup was both dangerous to them personally and inspiring. 

Monday, November 28, 2022

C4 YOU LATER

 Here is an interesting little scenario that crossed our desks today, and was also discussed on the "listmail that shall not be named.

Client charged with a crime. 

Defense attorney files c-4 motion to dismiss. 

Prosecutor demurrers that the motion is well taken. 

JUDGE decides that it is not and believes that at a minimum lesser included charges should remain. 

Query: Can the judge at this stage, in the face of a prosecutor not opposing a motion to dismiss reduce the charges? 

A couple of thoughts. Many on the listserve we are permanently enjoined from reading or even acknowledging exists,  have rightly said that Judges in the United States cannot file charges like, say, judges in Colombia. 

BUT we interpose, imagine a scenario at trial where a client is charged with grand theft and all the evidence at trial is that the value of the property taken is $99.99. At the motion for judgment of acquittal stage the judge does not dismiss charges, she reduces them to a misdemeanor and the case goes on for another few weeks as the defense mounts a defense. 

So why can't the erstwhile judge facing the C4 motion do the same thing? 

Taking things a bit further, can a judge in state court refuse the prosecutor's decision to abandon a case and dismiss charges? Because in our scenario, the prosecution did not oppose the motion to dismiss. 

Can a judge force a prosecutor to prosecute a case? We think not. Prosecutors exercise their discretion all the time- or at least they claim to- although all we ever hear them say is "victim wants max" and "I have to speak to my supervisor and get permission ..."

Going back to our scenario, with second hand knowledge, what we surmise is the prosecutors have a bad case, but afraid of their own shadow or doing anything other than saying "victim wants the max" they punted the case to the judge to grant the motion and dismiss it, and she punted it right back. 

Quite the conundrum. 

Sunday, November 27, 2022

NFL WEEK 11 2022 QB EDITION

Update: We are  3-3 in our picks and the Packers are currently getting soundly thumped on Sunday night football. We are sure we will be a normal 4-4 by the end of the night. 

 There is one third of a season left in the NFL. It is crunch time. Which QB has the best quarterback rating (QBR) which is simply arrived at the number of throws, times yardage, minus interceptions, divided by the number of PCAs issued by the 3rd DCA?

Brett Favre? Zach Wilson? Matt Jones? Lionel Messi? Tom Cheater newly single Brady? Russell Wilson? Jim Plunkett? Why no, it's your Miami Dolphins QB Tua somethingorother tagliovoa

The Jets are sitting Zach Wilson giving a start to the greatest qb in the history of the world-Mike White. At home, where he pulled off a miracle win last year, we are all in on White over the Justin Fields-less Bears. Jets -4.5.  WIN 

The DC Commies are another teams sticking with a back-up qb the rest of the way- going with Taylor Heinicke over a healed Carson Wentz- who always seems to be on the short end of a hot backup qb on his team (remember Nick Foles and the Eagles SB run in 2017? Wentz was the starter until hurt). DC plays ATL. We like DC at home -4.5, getting some newfound respect from Vegas bookies.  WIN

The Pack is 4-7. Aaron Rodgers has a broken right thumb. As well as a broken spirit this season. The Eagles are a struggling 9-1 if that is possible, winning some close games that should have been close recently. Not today. Eagles at home -7 with a line that should be -9.5. 

With the first pick in 2023 draft the Houston Texans select....Houston at 1-8-1 are on their way to the top pick next year. The Dolphins at 7-2 are on their way to the AFC Championship game and a LEGIT Super Bowl Contender. Whomever wins the AFC is an automatic 7 point favorite in the big game. At The Orange Bowl Today....Joe Robbie Stadium Today...Hialeah Branch Court Stadium Today...Dolphins Stadium today coming off a bye week, the Fins are 13-point favourities. Lay the points as Miami wins big  and finish off those turkey leftovers for dinner tonight.  BIG WIN 

Friday, November 25, 2022

BOOKS AS GIFTS

 Holiday books and gift giving. 

Tis the season to sit down next to a roaring fire, have a cup of tea while it is snowing outside, and read a good book. And we recommend giving books as the best gift. 

So what does Rumpole recommend? 

In the last two years we re-discovered Patti Smith- a woman who is simply a pure genius. Her remarkable life story, beginning with running away from her New Jersey home as a teenager and having fate intervene and place the soon to be artist Robert Maplethorpe in her life- and their life journey together until he died of AIDS- is recounted in her book Just Kids. We stumbled on the book in an airport on the way to NYC which much of her life story takes place. It's a life affirming, potentially life altering book. And if you have already read that one, then her new book (which she just promoted at the Miami Book Fair) is A Book of Days- one of her photographs and short description of it for each day of the year.  

This is a woman who can extensively quote from 18th and 19th century poets and has throughout her life visited the graves of those who inspire her. We have heard her say the grave of Sylvia Plath was the loneliest she has ever visited. Her vignette of her encounter with chess champion Bobby Fisher as he prepared to play Boris Spassky is remarkable, as is her visit to Fisher's grave many years later. 

If you must read about law, then Democratic Justice, the biography of Felix Frankfurter is a worthy read.  Prodigy, German immigrant (before there were walls), Harvard Law Professor, US Attorney for the Southern District of New York, Labor mediator, personal diplomat for President Wilson dealing with "the Jewish problem" and Palestine during WWI, friend of Justice Brandies ( Frankfurter's hand in founding of the New Republic Magazine and the New Republic's support of Brandies helped overcome the antisemitism behind the opposition to Brandeis's appointment to the court) and protégé of  Justice Holmes (who is perhaps the first Justice to intelligently articulate the philosophy of the limited role of Judges in interpreting the law). It is worth the time to read. 

Give "Year Of Dangerous Days" to your favourite Judge or prosecutor or PD so they can learn what Miami was like during the late 70s-80s and how the cocaine traffickers and cocaine wars changed our small southern town. 

Princes at War for the WWII buff and the Royal family's involvement in battling national socialism in the 1930s and WWII. 

The madness of the 45th president and all his many short comings are detailed in the audio book "The Trump Tapes" by Bob Woodward. Woodward recorded 18 separate interviews with the president. What emerges in his own twisted words, is a man of limited intelligence, fixated on certain ideas and events that he cannot get rid of. For example, over and over throughout the years that the interviews occur, Trump returns to an incident in the 1980s when Woodward and Bernstein visited him in New York to consider a book about him. The addled President frequently returns to that episode, repeatedly reminding Woodward of the opportunity he missed in not doing that book, often raising the incident in a manner in which it is clear he didn't remember raising it in a prior conversation. Along with the now familiar speech pattern of "Nobody has ever seen...",  and "People are saying..." while trumpeting his greatness in lies- "the greatest economy of all time....",  and "nobody can believe the relationship I formed with North Korea", what emerges from hearing Trump speak is the shock that that someone so dumb and mentally ill could reach the presidency. 

Paul Newman In His Own Words is a fascinating insight into a complicated 20th century icon. Newman recorded hundreds of hours of interviews with Stewart Stern, a screenwriter and longtime friend. Then Newman burned the tapes and the project was over. THEN....transcripts of the tapes were found in Stern's records when he passed away and the book was created. 

At Patti Smith's suggestion, we are starting Henning Mankell's Kurt Wallender series with the first book in the series about the Swedish detective- Faceless Killers. Join the journey with us, 


IT'S HOLIDAY TIME (duck and cover)

The United States 2022:

ITEM: Cheasapeake is Virginia's second largest city. On this past Tuesday. at a Walmart around 10pm as shoppers looked for preholiday bargains a manager stepped out a break room and started shooting, spraying bullets everywhere. Donna Prioleau, a worker at the store, saw three of her friends killed. 

ITEM: The weekend before the shooting at the Walmart, at Club-Q in Colorado Springs, a state not unfamiliar with gun violence, an establishment catering to LGBTQ patrons, a gunmen opened fire and killed five people, wounding 25 others. Richar Fierro, a former US Army combat veteran who was in the club with his family, disarmed the shooter and beat him, risking his life in the process. On right wing media Fierro is already being attacked and has received death threats. What was a man with a family doing at such a club they ask. As if a family cannot enter an LGBTQ establishment for a drink or meal or to listen to music. "False-flag" accusations are being made, despite the evisceration of right wing media nut Alex Jones and the billion-dollar judgement against him for raising the same lies about the Sandy Hook school shooting.  And some religious commentators have darkly opined that the dead will meet their final judgement for the life they led (read being condemned for their sexual preferences). 

We live in a country gone mad. 

According to Gun Violence Archives, there have been 607 mass shootings in the US in 2022.  There were 690 incidents in 2021, and 610 in 2020. 

There were seven mass shootings in seven days in the week before Thanksgiving. 22 people died of gun violence, 44 people were wounded by guns. 

The second amendment, which has NOTHING to do with an individual's right to buy an AR-22, is causing a national epidemic of violence and death. And the Right's answer is to arm more people. It's as if in facing the AIDs epidemics, the answer was to have more unprotected sex. 

This, readers of the blog, is insanity. It is not something that a civilized society endures.  

However the future is grim. We as a nation could not take united action against a pandemic, with a large percentage of the population finding conspiracies behind the mask mandate and the creation and use of vaccines that battled Covid19. If we cannot unite behind that common enemy, we have no chance to unite to end gun violence. 

Gun violence will continue, and mark our words, as in Parkland, it will affect people in Florida. We do not wish this. But we can read the writing on the wall. 

Duck and cover. Stay safe. 


Thursday, November 24, 2022

HAPPY THANKSGIVING

 "When the crops were thriving, Squanto took the men to the open forests where the turkey dwelled. He pointed out the nuts, seeds, and insects that the iridescent birds fed upon.

He showed them the leaf nests of the squirrels and the hideouts of the skunks and raccoons. Walking silently along bear trails, he took them to the blueberry patches.
He told them that deer moved about at sundown and sunrise. He took them inland to valleys where the deer congregated in winter and were easy to harvest. He walked the Pilgrims freely over the land.
To Squanto, as to all Native Americans, the land did not belong to the people, people belonged to the land"

A small band of explorers, seeking religious freedom sailed across an ocean and established a great nation. A nation founded on great ideals of freedom. A nation that often does not live up to those ideals. But a nation of people who try. In the coming days we will point out our failures, because doing so makes us stronger and better. 

For today we wish you peace and happiness with your family and friends. 

BUT... being Rumpole, we cannot resist this one rant. 

Our email inboxes are already filled up with Black Friday deals. That mop with the automatic squeegee that we think will change our life- well now it's on sale for 50% off. That is what Thanksgiving has turned into- an enormous sale of goods for consumers. So be it. We have bought a TV from time to time over the years on Friday. Not to mention a new coffee maker (we are in fact about to buy the Spin and go Pod free. It's not a cheap purchase and we are still pondering it, so any reviews are welcome.). 

HOWEVER, what we do not need is your email wishing us a happy Thanksgiving. 

No one sits down to their meal, a beautiful Turkey on the table with all the fixins and says "wait a sec honey. Before we pray and eat, did we get that email from Dooey Cheetum and Howe wishing us a happy Thanksgiving?
"Who?"
"You know, the law firm who two years ago sued on our behalf when the neighbor's septic tank leaked and ruined your petunia garden. They always send an email with a picture of a smiling turkey wishing us a happy Thanksgiving...

JUST STOP IT. 

We do not need your email. It just clogs up our inbox, obscuring the email from CMECF notifying us that the motions to suppress was denied without a hearing (because if the officer found it, it was there, so there....)  and trial is set for January 2. 

The email is just an ad masquerading as good wishes.   "Hey everyone- don't forget about us. We sue insurance companies when they don't pay for hurricane damage and we are such good people that we also wish you happy Thanksgiving."

You want to be a good person? Go donate to a food bank. Go serve meals at a homeless shelter.  And do it anonymously:

"Be careful that you don't do your charitablegiving before men, to be seen by them, or elseyou have no reward from your Father who is in heaven."
Matthew 6:1  

Of course, Jesus had limited internet availability when he gave his Sermon on the Mount, or else he may have said "Be careful that you do not send your emails trumpeting your charitable deeds and good wishes, to be seen by others, else your team will not cover on Thanksgiving day." 

Enjoy the weekend off.