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.

Friday, October 22, 2021

STRATEGY

 This week we saw Nicholas Cruz, the infamous school shooter who killed seventeen people- children and teachers, and shot an additional seventeen people, at the school in Parkland, Broward County, plead guilty, which placed the case into the penalty phase in the Florida "dance with death" scheme for the death penalty. 

Was the move a good one? None other than Roy Black (cue Star Wars storm trooper music, which is surely what prosecutors hear when Mr. Black strides into a courtroom for trial)  opined in the DBR that the move was wrong. Rumpole of the Bailey famously said "never ever ever plead guilty." Mr. Black agrees.  (Perhaps he has something to do with this blog? Nah. Highly unlikely). 

Other commentators including the REGJB's own Phil Reizenstein  have praised the move in the media, saying the the defense had no path to an acquittal and the plea allows the defense to argue at the sentencing phase that the defendant has remorse, and has accepted responsibility and pled to crimes mandating a life prison sentence. In the same Ovalle/Herald article Gail Levine, late of major crimes at the Dade SAO disagreed, opining that the delay between the two phases of the trial would allow the horrors of the crimes to recede somewhat in the jurors' minds. Levine also said the strategy would not work unless Cruz decided to testify, which of course would open himself up to what would surely be one of the most devastating cross examinations in modern legal history. 

Clearly some very experienced lawyers see the Cruz strategy differently. 

So what say you? 

As a general principle we agree with Mr. Black. Not only should a defendant never plead guilty to what is potentially the maximum sentence, we also never approve of the strategy of admitting certain charges during the trial, while contesting others. The thought behind this strategy is that by admitting some charges, the defense "buys credibility" with the jury. Balderdash. It rarely if ever works. 

But the Cruz case is almost unique in its horror, devastation, and loss of life.  And the prospect of the 17 survivors who are listed as victims of attempted first degree murder, testifying about the horrors they experienced of being shot and seeing their friends and teachers murdered, may well be more devastating testimony than the testimony about the victims who died. 

The Cruz defense is in one of the worst positions we have ever seen a case. And their client did himself no favors with his disjointed statement to the families during his plea, during which he said he was pleading guilty for them. 

And on a separate issue, jury selection is set to begin January 4, 2022. Over/under on how long it takes to seat a jury? We say 70 days, and it goes over. 


Thursday, October 21, 2021

PHONES ARE BACK

 Someone paid the phone bill and the phones are now working at the REGJB. Which means you can, thankfully now do this again...


JA: Good morning, please hold.

Lawyer: Hello....umm

[music playing]

JA: Hello how can I....[click]

(lawyer redials)

JA: Good morning, please hold.

Lawyer.. wait...

(music playing)

JA: How can I help you?

Lawyer: I need to put a case on calendar. 

JA: Give me the case number please.

(Lawyer gives case number) 

JA: I'm sorry that's judge (so and so's) case. She's on vacation. We are answering her phones. Can you call back in two weeks?


Yes, we are all thrilled the phones are back in working order. 

Wednesday, October 20, 2021

ALL WE ARE SAYING ....

 Is to give PDs a chance. To become judges. Fake News MSNBC reports  that President Biden has appointed a significant number of district and appellate court judges who have experience as public defenders. The same cannot be said by the science denying, vaccine avoiding, mask-mocking Governor of the Sunshine State.  You can be appointed a Judge in Florida as a former or current public defender if -one of the following must apply-

[ ] You can walk on water;

[ ] You can feed the masses with a loaf of bread; 

[ ] You can show that you were forced at gunpoint by Antifa to be an Assistant Public Defender;  and/or

[ ]   you are the author of the book "The dirty secrets of being a Public Defender and Covid Vaccine Supporter". 

Otherwise, as a throw back to the signs often seen in 1950's in Miami Beach: "No Blacks, Jews, or APDs need apply."

In the 1970s and 80s we used to opine that former prosecutors made the best judges. But that was before the current crop of under 35, no legal scholarship, no life experience, no deep thinking about the law, former prosecutors who are now judges,  whose chief claim to being qualified- besides standing in court for years and saying "the victim wants the max", is their membership in the Federalist Society, although we doubt any of them have the ability to distinguish between Federalist 10 and, say Federalist 84. (See below, if you're interested). The late Judge Michael Salmon surely would have been able to opine for hours on the differences. But then, he was a legal scholar. 

Now we have a gaggle of zoom hating, exclusionary rule denying, right wing judges who follow precedent only to the extent it advances their career and solidifies their street cred as conservatives: 

Judge:     "But why should Miranda apply when a defendant voluntarily confesses, counsel?"

 Lawyer: "Well, the police broke my client's nose before he confessed."

Judge: "Well, he didn't file an internal affairs complaint or call 911 when he was beaten, so I don't find that argument credible."

Lawyer: "Well, the next time you're beaten senseless and then kept in isolation for a month with no access to phone, I suppose you'll contact 911 via carrier pigeon." 

Here's the current list of applicants to County Court. 

11th JNC PRESS RELEASE Announcing Interviewee Dates and Times for Judge Diana Vizcaino Vacancy (4812-5869-0... by HR on Scribd



In Federalist 84 (there are a total of 85 Federalist Papers) Alexander Hamilton, he of future  Broadway fame, argued against the need for a Bill of Rights, confident that future judges would find via judicial review (see Hamilton's Federalist 78) the rights not explicitly enumerated in the Constitution. Despite the holding of Griswold v. Connecticut  (where the court found a right of privacy in the " penumbra" of the Bill of Rights), boy was he ever  wrong. 

In Federalist 10, often called the most important Federal Paper, Madison makes the case for preventing the will of the majority overcoming the rights of the minority. 

The smaller the society, the fewer probably will be the distinct parties and interests composing it,…the more easily will they concert and execute their plans of oppression…Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will…invade the rights of other citizens.” — 

James Madison, Federalist No. 10

Judge: who wrote the federalist paper on calling balls and strikes? That's the one I want to read. 

Rumpole: Abner Doubleday. 


Tuesday, October 19, 2021

CALL YOUR FAVOURITE JUDGE? PHONES ARE DOWN

 The phones at the REGJB, and possibly other courthouses are DOWN...

"We are sorry, you have reached a number that has been disconnected or is no longer in service. If you feel you have reached this recording in error, please check the number and dial again."

That is the exact recording you will get when you try and call your favourite judge at the REGJB. 

So here is our big question: 

WHO FORGOT TO PAY THE PHONE BILL? 

We can just imagine the story in El Herald: "A call to the administrative judge was not returned because we could not get through to their chambers."



Monday, October 18, 2021

PARDON THE INTERRUPTION

 There was white smoke* coming from the Wilkie Ferguson courthouse on Monday, signifying that the conclave of federal judges for the SDFL had, finally, selected a new Magistrate Judge. As the SDFL Blog reported going into the weekend, there was apparently a split among our collegial federal judges,  with the possible log jam being 5-5-5! 

On Monday after the white smoke was seen, Mr. Markus reported that YOUR new federal magistrate is Ryon McCabe, who will sit in West Palm Beach at the old, decaying courthouse that has a strong resemblance  to 1970's  Soviet-boxy style-soul-sucking  architecture. It is a courthouse where you cannot even get  decent cup of coffee (but there are plenty of cafes if you perambulate down the street a bit). 

PARDON THE INTERRUPTION

A 2017 study of the Supreme Court found that female Justices were the most frequently interrupted, by both male attorneys and their colleagues.  A 2016 study of that year's oral argument found that the top two justices that were interrupted were Sotomayor (57 times) followed by Kagan (50 times). Justice Thomas was not interrupted because, well, he didn't speak in court that term.

So is gender to blame for "justice interruptus" ? Or are Justices/judges who speak the most interrupted the most? It is hard for us to form an opinion because rather than interrupt a judge, we tend to ignore them. 

So we ask our female judges and lawyers: do you believe you are interrupted in court more often because of your gender? 

At the Supreme Court there are new rules for OA. After the lawyer's time for argument has expired the Justices, in order of seniority, are given the opportunity to ask questions. If nothing else, the new procedure has made Justice Thomas a virtual chatterbox, as he now is much more engaged at OA, for whatever that is worth. 


* For those readers and judges not steeped in the minutiae of how the Catholic Church's college of cardinals selects a new pope, they meet in a conclave in the Vatican and smoke is created after each vote. Black smoke signifies that a new pope has not been selected. When a new pope is chosen, white smoke is generated through the burning of straw and a fancy chemical cartridge. After each vote the paper ballots are also burned.  We have advocated this process for jury deliberations for decades, to no avail. 

Sunday, October 17, 2021

NFL WEEK SIX 2021

 Fifteen Fourteen faithful and intrepid survivor players head into a week six that offers very few home favourites. 

The pickings are once again tricky, with most of the favourites on the road. 

The NFL's only undefeated team, the Cardinals, are getting 2.5 on the road at the mistake by the lake (Cleveland). It may be time for the birds to lose, but we don't think today is the day. Cards +2.5.

Pokes are -4 in New England where the leaves are turning and the evil genius lies, holed up in his lair, plotting doom against western civilization and the NFL. Take the Cowboys -4. In to each cheating coach's life some Dak Prescott must fall. 

Now here is a home dog we like- DA BEARS, with their rookie QB getting better each week, over the visiting Packers who are on a four game win streak. Enough is enough. The Pack returns to the mean and loses one they should win. 

KC -.65 bounces back in DC against the nameless football team who has troubles with a capital T and T rhymes with P and P stands for "putrid racist Muther'fers". 

Speaking of dysfunctional teams, take the Broncos at home -3.5 over the Raiders. The line is too small. 

The Steelers aren't good, and they are especially not good at home. But they have enough to beat the Seahawks at home -4.5 over a Seattle team without their QB. 


SURVIVOR POOL - De La Over went out  on a limb and picked the Fins in London and became the first to lose on week six as the Jags beat the Fins on a 50+ FG with no time remaining 23-20. The Fins fall to 1-5 and are now in the throes of another tough season that started with so much promise. . As we write this the game is tied in the 4th Q


week 6 by HR on Scribd

Saturday, October 16, 2021

INTERVIEW WITH A VAMPIRE

 They traverse the byways of Courthouses using restricted elevators (No Attorneys Allowed) and have a penchant for black, and feel insecure enough to have to sit elevated above everyone else (Except for the late, great Judge Jack Weinstein of the EDNY). 

The "They" we reference, are judges, and every now and then one decides to take a walk on the wild side and approach Rumpole for an interview. We decline most invitations, but accepted this one. The rules were simple- we would not edit or shorten answers, but we might decline to post an entire question and answer due to space. The final product would be approved by the Judge meaning the only negotiation was the inclusion or exclusion of a full question and answer. In this case, there were no disputes.  The Judge in question is currently a circuit court judge, but to protect their identity they refused to answer whether they had ever been a county court judge. 

R:How Long have you been a Judge?
J: More than a year, less than forever. I cannot give an exact date, which would allow my colleagues to narrow down my identity. 

R:Where have you served? 
J: Criminal, Civil, Family.   The list may or may not be inclusive for obvious reasons, and that also means I may just have substituted in one of those places for a shorter time than a full rotation. But I have enough experience in them to write about them. 

R:What  assignment did you like the best?
J: Like is not the right word. Where did I feel I had the most impact is a better question. Family.  I could hear motions and rule almost immediately on issues that directly affected real people. 

R: So I am assuming civil was not your cup of tea?
J: Not necessarily. The put-off in civil is the conveyor belt of cases all being handled the same way by the same group of attorneys. The same discovery requests. The same objections. The same rulings by the court. The same law firms suing and defending insurance companies. The built in costs of civil litigation to our society is staggering and concerning. BUT, and this is big, in a small percentage of cases the person being sued owns a small business or doesn't have insurance and the case takes on a potentially life altering outcome for them. I would look for those cases and do my best to move them along as efficiently as I could. The best I could do to help would be to bring finality sooner rather than later. I did the same for those cases where plaintiffs suffered catastrophic injuries or a loved one died. The plaintiffs, one way or another, needed an outcome to bring finality to their tragedy. The big dirty secret, which isn't a secret in civil court,  is how under staffed the system is. If you get sued today [Rumpole notes this exchange occurred in September] and your lawyer files a motion to dismiss, most judges do not have space on their calendar until January. And in this regard the legal system is failing our citizens. We need at least a half a dozen new spots in civil. Maybe more.  

R: Enough about civil. The best and worst of criminal court. 
J: The worst is easy- sentencing. It represents a failure in a human life. And it usually represents a failure in the person's family. A twenty year old who is going to prison for ten years represents a failure or breakdown of the family unit, the school system, and the absence of a support system to help them make better decisions. No child decides they want to be a thief or a drug dealer when they are growing up. I also see desperation in some people. Committing economic crimes because they do not see another way out- although my colleagues on the federal bench see that more than I do. 

Another part of the job is the mind-numbing number of violent crimes. They do not make the Herald, but there is a conveyor belt of murders and people being seriously wounded and I wonder about a society that produces such violence. I have met judges from around the world, and some countries- the Scandinavian countries come to mind-  just do not have the level of violence we have in the US. England and France do, but not nearly so much gun violence. 

The best part is two fold- when I see the system work and someone benefits from the chance PTI or probation offers. Or when I see (and this is very rare) someone exonerated. I also remember many of the victims that received closure from a case, but those memories are tempered because what brought them to the system was being victimized in the first place. But at least the system provided them justice and closure. 

I forgo to mention that the other worst part is working through the mountain of post conviction relief motions we get flooded with. I have to read the trial or plea transcript, get a response from the prosecutor and then write a detailed order usually denying the motion. What I worry about is the pro se handwritten motion that really has merit. Like, and not to get overly dramatic here, but what Clarence Gideon wrote to the Supreme Court from a Florida jail. Our system is not perfect, and some people do not belong in prison and I do not want to miss that handwritten motion that has merit. It keeps me up at night sometimes. 

I will not comment on death penalty cases because I just do not think I should. Sorry. 

R: Comment on the lawyering. 
J: Rocky waters here. First, the PDs are good to great lawyers. I always cringe when I hear a defendant say they want to hire a real lawyer, and then it gets worse when I see them show up with a lawyer who I know hasn't tried a case in over a decade. I think Miami has a great population of criminal defense attorneys who were trained as PDs or ASAs. But that is unfortunately the minority of the defense bar. There is an economics I am aware of that requires many good defense lawyers to run a "sign em and plea em" practice because that is the economics of the industry. It bothers me the same way the problems in civil court bother me. 

The prosecutors I see also run the gamut from good to great. For the most part the career prosecutors are people truly dedicated to their profession and standing up for victims and many of them are greatly skilled as trial lawyers. The problem with the SAO is simple and well known- it has become a large bureaucracy and the morale at the bottom is often quite low. I have been around long enough to remember when nearly every decision a prosecutor was asked to make was not met with "I have to obtain permission from a supervisor." That is no longer the case.  When I see a young ASA being forced to try a strong armed robbery that is really just a misdemeanor theft because a supervisor has refused to approve a reasonable plea because on some paper in their file someone wrote "vic wants max" I get very disillusioned with the system.  But the people in the system are dedicated and that gives me hope. In re-reading what I wrote let me explain that SAO supervisors will come to court. But since I have very limited options to get involved in plea negotiations without running afoul of case law, my frustrations must remain private. I work very hard to not reveal my views of the strength or weakness of a case. However I get my say at the JOA stage, as well as at sentencing and in ruling on motions. And if I do it right I can avoid a miscarriage of justice occurring. 

R: And lastly, comment on your colleagues. 
J. Ha! I knew you would ask that. I am not going to comment on personalities. Like lawyers, some judges are great, most are good to very good, and some are not so good. And for the most part we all know who the superstars are and who the laggards are. What you do not see and might not know is the number of times judges consult with each other on issues to make sure they are getting it right. There is a strong desire on the part of most of my colleagues to GET IT RIGHT and that is a good thing.  A few judges have what I would say are "concerning" or "difficult" views of what they do, and that worries me. Most, and I really mean this, most of my colleagues only have the agenda of trying to do a good job and getting it right. And that encourages me. 

R: Who reads our blog?
J: Every judge and not one judge. So that means a lot of us read it, less of us acknowledge that we read it, but we do. And btw that includes judges from around the state. I've gotten emails from Judges in Tallahassee or Jacksonville about something you have written that has made them laugh (usually this is the case) or has really gotten under their skin and they want to know how they should respond and if they should respond. But you know that, because you have their emails, because  I have been on some of those and I can tell your readers that there have been long and thoughtful email exchanges on significant legal issues and you never ever go back on your word to keep those private and this is to your credit. 

R: You get the last word.
J: This is the best job I could ever have. I should stop here. On my best days, on the best days, I am applying my skill and experience to difficult cases/issues and the matters are being fairly resolved and justice is done and when that happens I feel great because I played a part in that process. And that happens more than you acknowledge on your blog.  You like to make fun of judges and by now its just an eye-rolling process for us that read the blog. Rumpole making fun of our black robes again, being cheap, etc. But, in reading between the lines, I think you acknowledge the important role we play and that the very very vast majority of judges sought the position for the right reasons. That may not have always been the case, but it is the case now. These years on the bench have been the best of my professional life and I am profoundly grateful for the opportunity to use whatever skills I have to help people. Now go ahead and mock me. 

R: Nope. You said it all and you said it very well. Thank you for doing this. I took my cheap shot with the title of the post.