Tuesday, November 28, 2006


About two weeks ago the 150th birthday of Supreme Court Justice Louis Brandeis passed. Long time and careful readers of this Blog know of our admiration for Justice Brandeis, and his amazing and prescient opinion in Olmstead.

Brandeis was the first Jewish Justice to serve on the court. But his real contribution to law came from his devotion to the interjecting the facts of a case into the legal analysis. In 1908 Brandeis as a lawyer won an astounding victory during the Supreme Court’s Pro-Business era, when worker’s rights were routinely struck down by the Court.

Brandeis was defending an Oregon law that limited women’s workdays to 10 hours. It seemed likely the court would rule, as it just had in a similar case, that maximum-hours laws violated employers’ “right of free contract.” In his brief, Brandeis devoted two pages to legal analysis. Over 100 pages were devoted to citing statistical and sociological data, to defend the law by showing the real life harm that long workdays did to women. The court upheld Oregon’s law, 9 to 0.

We remember the Brown vs. Board of Ed., for the Court’s reliance on the sociological impact of separate but equal. But Brandeis was one of, if not the first lawyer to bring such an argument before the court 50 years before Brown was argued.

President Woodrow Wilson nominated Brandeis to the Supreme Court in 1916. Brandeis promptly shook up the court with his practical legal analysis- basing decisions on their actual impact on people. The Brandeis court overturned the court’s 75 year hostility to minimum wage laws, with Brandeis leading the way.

The Olmstead opinion didn’t just happen.

Brandeis was fated to be the Justice that brought privacy to American Jurisprudence. The New York Times recently remembered that as a young lawyer, Brandeis co-wrote an article for the Harvard Law Review, “The Right to Privacy,” that Roscoe Pound, dean of the law school, would later say “did nothing less than add a chapter to our law.”

We now revisit our post on Olmstead. Search this blog for Olmstead for the full post. If you read nothing else, scroll down to the final quote in bold and see if his words are not even more applicable today than the day he wrote them.

In OLMSTEAD v. UNITED STATES, 277 U.S. 438 (1928) the US Supreme Court first dealt with the issue of the Fourth Amendment and wiretapping.

Justice Holmes first dissented and called wiretapping a “dirty business”. Holmes framed the issue as a problem between allowing the government to break the law to catch criminals. Once framed, Holmes decision was easy.

But Justice Brandeis had bigger game in mind.
Brandeis was writing for the ages, and his topic was liberty and the defense of the individual.

Brandeis wrote that when the 4th Amendment was adopted, “force and violence” were the only means used by the government that the amendment was designed to protect against. But Brandeis recognized that over the course of time, threats to liberty change and evolve:

Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” Id. 474.
.. Moreover, in the application of a constitution, our contemplation cannot be only of what has been but of what maybe. The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court,and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of everyman in the hands of every petty officer" was said by James Otisof much lesser intrusions than these.'While we are sure President Geo. Bush was not the “petty officer” referred to, the prescience of this opinion is amazing. With the framework properly laid, now Brandeis turned to his great theme: protection of liberty for as long as this republic stands: "The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.Id. 479.

Brandeis then set to warn future generations of the real threat to liberty. These are the words that need to be read and re-read today:

"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion oftheir liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal,well-meaning but without understanding.

Brandeis concluded with his famous peroration that is as much or more applicable today then it was in 1928:

"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct tha tare commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.
Crime is contagious. If the Government becomes a law breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face

Wow. It doesn't get any better than that.

How does the Government's actions against the people rotting at Guantanamo Bay fit within that reasoning?

Of course, as we have previously quoted our learned and wise president, regarding the Constitution: “it don’t apply if you ain’t read it.”

Sunday, November 26, 2006


Yesterday we received this call to arms:

Anonymous said... (in part)
HERE IS YOUR CHANCE AT TRUE GREATNESS FOR RUMPOLE AND HIS BLOG. The State of Florida has many priorities above and beyond abiding by the 6th Amendment to the U.S.Constitution. Why don't you step up to the plate and have all your blogger friends come up with all the waste in the state and county government which the State feels supersedes the representation of the poor and payment of the people in the system. I believe the Justice system in Florida, 1/3 of the three branches of government accounts for less than 5% of the State Budget. ...

Expose the fact that we are grossly underpaid and now the poor will suffer with experienced attorneys no longer willing to work for peanuts and having to wait months AFTER THE CASE IS FINISHED to be PAID. ..
Judges get 12000 a month, KFR and BB the same. Do a murder case for the state, get death threats, stress, criticism etc. and don't get paid and have to live off savings and credit. .. THE BUDGET FOR THE COURT SYSTEM SHOULD BE TRIPLED and spending 75 million a year on a bullet train study is an example of why SAPDS, COURT REPORTERS ETC. are told to f themselves. ..

By the way, aren't we the attorneys who keep chaos from happening- there aren't many super rich clients with super rich attorneys and that is usually federal court.

Rumpole responds: Now before you pull the signs and paint out of the garage, just settle down a minute.

To quote one of our favourite movies, “This is the business we have chosen.”

What we mean is that by practicing criminal law, we have traded a certain amount of financial security that large civil firms offer, for the enjoyment and satisfaction of practicing the type of law that we enjoy.

No one owes you a living. Nor is it your business what a Judge or another attorney earns. That is their private business.

However, you touch on certain valid points.

Entry level prosecutors are under paid. If we want a safer community, prosecutors should be paid a living wage. We remember one former ASA who wrote that at the end of the month he had to call in sick because it was a choice between feeding his child, or paying for gas. That is wrong.

If the government wants to warehouse humans convicted of crimes for decades if not life, then the government owes all of us the ability to insure that those people accused of crimes are being provided the best damn defense possible. We agree that as citizens we are entitled to the best damn prosecutors and well trained police officers. But for the system to work, the playing field must be level.

We have got to stop putting innocent people in jail.

I know certain distinguished prosecutors with the initials AL may disagree with us on the percentages. But we again postulate that if you extrapolate the number of INNOCENT people sentenced to death to the hundreds of thousands of inmates convicted of non-death penalty crimes, (where the level of post conviction scrutiny is not as high) there must be thousands, perhaps 10,000 innocent people in our prison system today. (Nationwide, not just Florida.)

No decent government can condone that sort of treatment of its citizens.

The system is broke, monetarily and systemically.

Here are some possible solutions.

1) This “conflict” business of the PDs has to stop. You mean to tell us that a top PD trial lawyer cannot represent a defendant because one of their PDs in county court represented a witness on a DUI? That dog won’t hunt.

2) If you did away with the court appointed attorney system, many criminal practitioners would have to move to a different area of the law. That is not a bad thing. That is economics at work. As many have pointed out, the court appointed system was designed as a way for successful practitioners to give something back, not as a primary way for attorneys to earn a living. (If you have ever wondered about our need for anonymity wait to you read the posts from our colleagues in response to this. )

4) If you set up a separate “conflict section” of the PDs office, you have your solution.

This is what the case law calls a “Chinese Wall” : when prosecutors in one part of their office are prosecuting a defendant who is a witness for the prosecution in another case. The PDs could do the same thing. Duh.

Give the PDs another $1,000,000.00 a year. Hire four or five attorneys plus support staff, and you are up and running with a new "conflict unit." Ok-make it two million and hire ten attorneys. Any way you slice it, it's cheaper than what we're spending now.

6) OR- because we don’t like death threats, you can just raise taxes and give private criminal defense attorneys another 50 million a year to divvy up.

Here is the real problem. When children are going hungry; when our kids are being shot at in the streets and are attending schools that have weapon screening at the doors; when the poor have no health care other than the Jackson ER room; when teachers can’t afford to buy a nice home; when the City of Miami and Metro Dade CANCELS our recycling service (boy are we peeved about that); do we really think that criminal defense is the number one priority?

Teachers, police officers, social workers, hospitals, libraries, schools, all play as important a part in our society and well being as we do; probably more.
And each one of those professions or institutions is in need of money.

Since we think the chance of adequate funding is about the same as Judge (insert name of your favourite judge here) being named to the 3rd DCA, then we as criminal defense attorneys have to accept that the system is broke and will not be fixed by throwing money at it.

There has to be another way. We can lead the way on this. We can make the system better. Stronger. More efficient. (Is anyone else having a flash back to the opening scenes of the 6 million dollar man TV show?)

See You In Court, not taking appointments.

Saturday, November 25, 2006

Gobble Gobble.

We gave you the Fins and the Chiefs on Turkey Day. Now for Sunday we dish up these potatos:

Lay the 4 and take the Jets and under 40 as Houston visits the up n down Jets. (Get it? Jets go up and down?)

Chicago gets 3 while visiting the Patriots. Readers of these picks know our disdain for the Bears. They haven’t done nuttin yet. They don’t do nuttin Sunday. Pats roll.

Carolina giving the Redskins 4 on the road. Skins having a worse year than the republicans. Go Cats. They cover.

Bengals giving Browns 1 at the mistake on the lake. Browns mistake was fielding team this season. Cleveland cures what ails the Bengals. Go Cats. They cover.

Wednesday, November 22, 2006


The odds makers are making it tough today. All three games have an over/under of 39.5.

Going to keep riding our home town Fins. Give the three on the road with a short week, because our heroes are hitting their stride, while the Lions are just hitting the bottle. Matt Millen is the worst GM in the league.

Denver is getting 3 on the road at KC. Give the three, take the over 39.5, enjoy your turkey.

Tampa Bay is getting 9.5 visiting the Cowboys, who are riding high after nipping the unbeaten Colts. Take the under 39.5. I don’t have a strong opinion on the line, but two thoughts: Dallas is overrated, and Dallas is do for a let down. I see this as a 10-3, or 17-10 snoozer.

Also, take Rumpole and Not Guilty. It’s a lock.


Well, there’s North of the Border and then there’s ‘Really’ North of the Border …


A rising young Broward assistant public defender lost his job last week after he was accused of smashing a colleague in the head with a beer bottle during a quarrel over a woman. Edward "Eddie" Lopez, hit Faisal Afzal during a party at Tarpon Bend for a Broward prosecutor moving into private practice.

Broward Public Defender Howard Finkelstein said he was stunned to learn of the incident. Lopez had been with the office since April 2005. He had recently been promoted to major crimes attorney. Finkelstein said he does not interfere in his employees' private lives, but Lopez's behavior had crossed the line. "As an employer, I have an obligation to guarantee that all of my employees can work in a safe and secure environment," Finkelstein said. "It would have been unreasonable for me, in light of what happened, to ask Faisal to feel that he was safe and secure...I have no room for violence either in the work place or in my personal life."


For those of you that enjoyed the Bennett Brummer vs. Gabriel Martin election and soap opera that followed, this fiasco in Jacksonville really takes the cake. It appears that longtime State Attorney Harry Shorstein is about to draw opposition from an ASA in his own office. Here is what happened last week:

Days after marking a quarter-century of service in the State Attorney's Office prosecuting criminals, Assistant State Attorney Angela Corey got a memorable anniversary gift from boss Harry Shorstein on Tuesday. He fired her. Corey said she worked her last day Wednesday, after the state attorney met with her the day before and gave her an ultimatum.

Shorstein told her she could write a few letters of apology and keep her job until year's end, or not write the letters and face an immediate firing, Corey said. The 52-year-old lawyer has been blunt about her intentions to challenge Shorstein for his job in the 2008 election, but said she couldn't speculate if that figured into his decision to fire her.

Shorstein's statement said there were "long-term issues" related to Corey's supervisory performance and "irreconcilable differences" between Corey and himself on issues concerning how the State Attorney's Office should be run.

In her years as a prosecutor, Corey said she brought 54 homicide cases to trial, a number of them high-profile. About a year ago, however, Shorstein transferred her from her job as director of the gun crime unit to director of the county court where she was tasked with training new lawyers to prosecute misdemeanor cases. Now she is out of a job.

AND LOCALLY, there will be many new faces donning judicial robes come January 1, 2007. Here is some of what is happening:

Victoria Brennan can be found at County Civil, 4th floor; Cristina Miranda has joined us at the REGJB, 5th floor, and Douglas Chumbley is over at Juvy.

Juvenile will lose at least two jurists as Beatrice ‘Betty’ Butchko and Ellen Sue Venzer will be packing their FLW’s and heading over to REGJB. We will be saying sianara to Gill Freeman as she has been tapped by our Chief Judge Farina to head the new “Commercial Division” handling complex business disputes.

In Civil, two former criminal judges have been handling the duties of back-up judges. They are responsible for taking any jury trial that lasts more than one week. Judge Kevin Emas continues to get rave reviews as one of those two judges; Victoria Platzer is the other.

We say goodbye to Ivan Hernandez, Shirylon McWhorter, Martin Shapiro, Bonnie Rippingille, and Michael Samuels and we say hello to Robin Faber, Patricia Marino, Victoria del Pino, Gloria Gonzalez-Meyer, Don Cohn, Valerie Manno Schurr, Antonio Marin and Marisa Mendez.

AND FINALLY, to all my loyal readers, here’s wishing you a big fat turkey dinner on Thursday …. Happy Thanksgiving …..


Tuesday, November 21, 2006



The so-called Piltdown Man was fragments of a skull and jaw bone collected in the early years of the twentieth century from a gravel pit at Piltdown, a village near Uckfield, in the English county of Sussex. The fragments were claimed by experts of the day to be the fossilised remains of a hitherto unknown form of early human. The significance of the specimen remained the subject of controversy until it was exposed on November 21, 1953 as a forgery, consisting of the lower jaw bone of an ape combined with the skull of a fully developed, modern man.

Fast-forward 53 years and we are faced with our own Piltdown Man scandal as the Miami-Dade County State Attorney’s Office has decided to attempt to pull one over on all of us. Only today’s version of Piltdown Man is the falsification and forgery of official court records and documents all for the greater good.

In the words of Jose Arrojo, a top assistant to Miami-Dade State Attorney Katherine Fernández Rundle, said judges' altering public records in informant cases at prosecutors' request has been ''an established practice in this circuit'' for two decades.

Florida law makes it a crime for anyone -- including judges, clerks or ''other public officers'' -- to alter or falsify court records or proceedings. Offenders can be sent to prison for a year.

F.S. 839.13 Falsifying records

… if any judge, justice, mayor, alderman, clerk, sheriff, coroner, or other public officer, … or any person whatsoever, shall …, alter, corruptly withdraw, falsify or avoid any record, …, or any paper filed in any judicial proceeding in any court of this state, or shall knowingly and willfully take off, discharge or conceal any issue, … or shall forge, deface, or falsify any document or instrument recorded, or filed in any court, …; or if any person shall cause or procure any of the offenses aforesaid to be committed, or be in anywise concerned therein, the person so offending shall be guilty of a misdemeanor of the first degree …

Court Clerk Harvey Ruvin said he learned from Arrojo only this week that court records were being altered. ''He called and assured me it was totally proper,'' Ruvin said. Arrojo, chief assistant state attorney for special prosecutions, said his office believes state laws that exempt some sensitive records from public disclosure also allow judges to authorize what was done with the docket … ''This is an established practice in this circuit for many, many years and we are comfortable that the rules of judicial administration allows for this,'' he said … If you expect your government to engage in proactive investigations while protecting the lives of cooperating witnesses . . . certain materials are going to have to be kept from public view.''

Our readers have their own opinions:

Anonymous said...
This whole thing in the herald is a non-story. Funny they beat up on SAO for not doing enough re corruption and then when SAO does some creative things to further investigations, they squawk. Funny, I didnt hear them squawking too loud when these same tactics were used to catch Judge Shenberg who was willing to give up the name of an informant for 20 grand.

Anonymous said...
creative things to help investigations? this is the SAO falsifying ct. records so that their informants can't be impeached with their priors. thats clearly unconstitutional and shows a complete disdain and disregard for the right of a defendant to fully and fairly cross examine all witnesses against him. and the fact that sitting judges are willing to go along with it should be disturbing to anyone with the slightest idea how the criminal justice system is supposed to work in our country. its a story. if you think it isn't you've been too jaded by working in the system.

Anonymous said...
.that's BS. Secret files/false dockets weren't created to allow witnesses to avoid impeachment. They were created to keep witnesses alive and investigations going. When people enter sealed pleas or a judge seals a file, the Clerk's Office notes that in the public docked. This, of course, vitiates the purpose of the sealed plea and, in fact, creates added risk since anyone with half a brain knows files generally are sealed for only one reason (yeah, I know some first timers who are not convicted get their cases sealed/expunged, but we all know that's rare as hell).

And two strong opinions on Jose Arrojo, one from a distinguished jurist:

Anonymous said...
Jose Arrojo should be ashamed of himself. Hey Jose! One day when you can no longer ride Kathy's coattails, the things you had to say about this illegal -- that's right -- the law applies to you too -- practice will rise up and bite you in your ass

Judge Roberto M. Pineiro said...
It is truly unfair to anonymously castigate Jose Arrojo and denigrate his trial skills simply because you disagree with his position on sealed cases. Mr. Arrojo tried a public corruption case in my division a few years ago and was very effective. He was also very honorable and is the type of person who will stand up for his people especially if he has authority over them.

... By the way, also on this day in history, November 21, in 1980, the famous ‘Dallas” episode, “Who Shot JR?” aired and received a whopping 53.3 rating. Maybe that’s what we should all be talking about instead ……

CAPTAIN OUT .................

Monday, November 20, 2006



I would first like to take this opportunity to thank Horace for giving me the chance to be a Guest Blogger. (And to congratulate Rumpole on going an amazing 5-1 in the pros and 2-0 in college this weekend. The '72 Fins are just finishing their last glass of bubbly right about now and smirking at Rumpole for picking the Colts).

In order to maintain public security, ensure the safety of the lives and property of the people and safeguard the smooth progress of the socialist construction, it is imperative to subject criminals who seriously endanger public security to severe punishment. To this end it is decided:

(1) Punishment above the maximum punishment stipulated in the Criminal Law, up to and including death sentences, may be inflicted on the following criminals who seriously endanger public security:

a. ringleaders of criminal hooligan groups or those who carry lethal weapons to engage in criminal hooligan activities, if the circumstances are serious, or those who engage in criminal hooligan activities leading to especially serious consequences; ...
e. whoever organizes reactionary secret societies or uses feudal superstition to carry on counterrevolutionary activities, thereby seriously endangering public security.

As you might have guessed, the above cite cannot be found in your local 2006 Edition of Florida Statutes. In fact, it comes from the People's Republic of China. We all have many things to be thankful for, family, friends, our health, and even the legal system we work in. Whether you are a prosecutor, public defender, private attorney, or judge, we all have an obligation to respect the great system we work so hard in every single day.

So, in this, the week of Thanksgiving, while citizens of other societies are being put to death for "organiz[ing] reactionary secret societies", The Captain would like to know what you are thankful for and what you plan on doing between now and next Thanksgiving to help make our system of justice even better.

"Each era finds an improvement in law for the benefit of mankind." -----Clarence Earl Gideon

CAPTAIN OUT ..................

Sunday, November 19, 2006


Careful and long time readers of the blog remember when we roasted the Federal College of Cardinals for their secret dockets, especially after they continued the practice although the 11th Circuit in Atlanta told them, to use a legal term:
"Hey! Cut-it-out." See this blog under Shhh...It's a Secret.

The Miami Herald reported yesterday about secret court records, and public court records being altered to further criminal investigations. If you read the comments of yesterday, there is a link and the whole story reported. Many readers asked for our view.

For all of left leaning liberal rants, without forming a final opinion, we recognize a LIMITED need in rare cases for courts to alter records to assist an on-going law enforcement investigation.

The question is: could you envision a scenario where the ends justified the means? To save a human life? Sure. To stop a terrorist's use of a WMD? Of course.

Fake cases with fake defendants and fake records were used to ferret out judicial corruption in our own building over 15 years ago. That was worth it (especially if you had to try a case in front of Gelber, Davis, or Shenberg and were not on their list. Bunch-a simple corrupt thieves.)

To further a narcotics case? hmmm...

Is the resulting publics' loss of confidence in the judicial system worth any drug case? For those of us in the system, it has been clear for decades that drug cases are fueled by money- the money law enforcement makes in those cases. Federal grants, seizures and forfeitures fuel the agencies, while that money pays for the overtime for officers. Narcotics investigations are a good topic for another day.

Why wasn't there procedures covering the altering of court records? What about a panel of three Judges, like a judicial oversight committee? It pains us to say this, but the Feds have their act together on a similar issue. They have an entire intelligence court system with judges trained and certified to review legal issues in sensitive intelligence cases.

How about Legislative Guidelines to cover these cases, with SAO and 11th Circuit internal guidelines to supplement the law? And how about rules to correct the record when the case was over?

Ahhh.. whadda we know?

(We know enough to tell you yesterday to take Michigan +7 and the over. Ahem-both won).

Saturday, November 18, 2006


Michigan/Ohio State. Thanksgiving day games. What a wonderful time of the year if you love the ol' pigskin.

Going with the defending champs for the first time this year. Take the Steelers and give the 3.5 over the Brownies. These games are usually close and hard fought. The ½ point worries me as I can see this as an OT game decided by a field goal. But the Steelers always play the Browns hard and their offense is beginning to click.

Colts over the Cowboys pickem on the road, Not this week 72 Fins, sorry.

Speaking of the Fins. Why not lay the 3 over the fading Vikes and make a few bucks?

OVER/UNDER. Still red hot this year.

UNDER 40 Jets and Bears.



Have fun and make sure to check back on Wednesday for our Turkey day picks.

Bonus: Michigan vs. Ohio State. Michigan averages 29 points a game while Ohio gives up 8 points a game. Ohio State averages 35 ppg, while Michigan gives up 12 ppg. Two big offensives go up against two tough defenses. Something has to give.

The Over/Under is 41. Take the over.

Ohio State is favoured by 7. My mind says Ohio, but the birdie on my shoulder says take the 7 and relax.

Friday, November 17, 2006



Court Appointed Counsel Update:

In reference to the money, or lack of it, many people on both a local and statewide level are working very hard to get the money released ASAP.

On a more critical issue: As many of you know, this new statewide system took birth on July 1, 2004 as a result of the 1998 constitutional amendment that voters passed transferring funding from a local level to a state level. With that, the legislature spent two years writing legislation that was passed in 2003 and 2004 to help run the new system. While the CAC system is run by the JAC in Tallahassee, we were very successful in keeping local input to a maximum with the creation of the local ISC (Indigent Service Committee), the FRC (Fee Review Committee) and the Screening Committee. Each of the 20 circuits still have these groups in place to help keep most of the decision-making local.

Now, only 27 months into this new system, there is a move afoot to change it again.

The present system would be replaced by one run 100% out of Tallahassee.
An "Executive Director" would be hired (sort of like a Chief Public Defender) who would then hire Regional Directors and Local Directors. They would rent office space and hire staff throughout the state. All decisions would begin and end with the Executive Director.

What's good for the attorney in Palatka or Pahokee would be good for the attorney in Miami. [Rumpole notes: what a wonderful thought. We need a little Pahokee in Miamah."

All staff would be paid employees of the State. They would replace all of the above committees that are VOLUNTEER committees.

We would have NO local input.

Needless to say, we are fighting like hell against these changes.

We are lobbying members of the Commission that is responsible for this new proposal. We are lobbying judges throughout the State that we feel can help our position. We are lobbying State Senators and State Representatives. We will be lobbying both the Lt. Gov. and the Governor.

Someone asked what FACDL-Miami does.

This is just one of the things we do.

We do many, many other things that benefit the members of the criminal defense bar.We invite your comments and suggestions and hope to have you as a member of our organization for 2007.

Rick Freedman

Rumpole says: Pay your 2007 FACDL dues now. President David O Markus just sent out an email with the bill. If you are not a member, go to the link for Markus's blog and shoot him an email. Before you can say "The people in Tallahassee are not the brightest bulbs on the tree" Markus will have you signed up.

Thursday, November 16, 2006


Sometime in early November of 2005, having weathered two long hurricane induced power outages, we were sitting in our office, dodging bill collectors, and being the generally glum hack we are known to be. Then a story crossed our desk about a young federal prosecutor who was running a blog about federal courts and judges anonymously. Then we got a link to our favourite federal blogger, David O Markus with a K.

It seemed like a fun idea. Lord knows we were full of [ideas] back then, and no way to get anyone to listen to us. It’s tough being the smartest guy in the room and nobody listens to you (especially when your ego is a bit too large for your own good.) So we started a blog.
Here is our welcome post from November 16, 2005:

Welcome to the Justice Building Blog.
My Name is Horace Rumpole.
We seek comments, rumors, and stories on any and all Miami Justice Building habituates, Judges, Prosecutors, Attorneys, and defendants. While we (the royal we) will not be libelous, and we will not pick on those not able to defend themselves [ insert your favorite judge here] , we love a good story about a Judge or lawyer putting his or her foot in their mouth. A juicy rumor that is not too harmful will also be posted.

We had a general idea of where we wanted to go: pompous judges with no experience and less legal skills who all of the sudden thought they were the next coming of Brandeis or Holmes just because they managed to squeak out a win in the election; sleazy lawyers who steal cases with bondsmen; stubborn prosecutors who lost all common sense when given a bit of power; lazy PD’s just skating by; and perhaps the biggest source of our ire: Broward Judges who mistreat lawyers from Dade.

We skewered our fair share of targets this year, but along the way we took a small part in remarkable outpourings of grief and love for departed Judges Crespo and Leyte-Vidal. We watched as public defenders came out of the woodwork to lay bare the feuds, petty and otherwise, that run through their office. We complained and commented on the candidates, qualified and unqualified, who challenged sitting judges, some who deserved it, many who did not. We mediated the debates on the comments section, endured about three months of attacks from a lunatic who jammed the comments section with the list of all the lawyers in Florida. The comments were moderated, and people were not happy.
But we survived.
When Judges made a mistake in court, some of them came to the blog to apologize. When readers complained about the illogical rule of certain Judges of not allowing continuances at soundings, Judges heard the complaints and changed the policy. When we criticized a Judge for taking part in the drafting of proposed legislation, we were put in our place with a vigorous defense by the Judge.

We wrote long boring articles on the death penalty, the problems of eyewitness identification, Brandeis’s brilliant and prescient opinion in Olmstead, and funny missives on Broward Judges who arrest illegal immigrants.

We’ve been praised, lambasted, attacked, profiled in the media, questioned, challenged, flirted with, cursed at, threatened, scorned, and loved.
We have received emails from lawyers all other the country who say that while they do not know the players, they are fascinated reading about our little world. We went from no comments on our first post, to averaging a 100 comments a post for some months.

About a month after the blog started we were at a party (for the free food and liquor, not the companionship) and heard three different groups of people speculating about our identity. It was a strange feeling. It was even stranger to hear lawyers in Au Bon Pan using terminology that we coined on the blog.

And while this blog has brought us a great deal of enjoyment this past year, there is one thing we regret. Honesty and integrity mean something to us. We view our role as an officer of the court as more than just a phrase. And we value the friends we have made over the years. Thus it came as some surprise to us just how uncomfortable we felt denying we were Rumpole to well meaning friends and colleagues who would sidle up to us and whisper in our ear that our secret was safe with them. To all those people who may one day be offended or hurt by our disingenuous denials, we simply say sorry.

To do this right meant the freedom to call attention to a Judge out of control, or a policy that was wrong. However with this power to criticize freely and safely, came the responsibility to keep our thoughts honest, and to remove hurtful and false or inappropriate comments on the blog. To the candidate whose sexual preferences were mocked, we apologize. We missed a few of those and are sorry for the pain it caused you to read them.

The recent participation of lawyers like Roy Black and Abe Laeser and their amazing discussion of the case they tried (The Case That Made Miami Burn) and the Blog’s part in publishing Judge Pinerio’s wonderful memories of Sy Gaer, and our role in publicizing his birthday party, show just how special this Blog can be.

We walked into the Justice Building on ------- (you didn’t think we would give away that clue, did you?) And what seemed like a grand adventure for a few years turned into half a life time of work.

The highest of highs, when years worth of work yielded a great win, and crushing defeats, some of which we will never forget. Say what you want about our profession, but we touch people’s lives very directly. We participate in the drama of lives lost, and lives rescued.

We remember friends who have passed on, relationships that didn’t work out, Police Officers we knew who were murdered (Scotty Rakow), and more than a few colleagues, friends, and Judges who ended up on the wrong side of the jury box.

It has been quite a ride.

Here’s hoping the second year brings more of these great moments.
Thanks for reading.
See You In Court.
We’re the ones smiling about our blog.



We made it! One year and still blogging. We start a two day introspective about the blog. Why blog, and maybe even a bit of who blog (but not much), with a lot of memories about posts and comments from this past year.

We start today by posting our full email interview with reporter Nick Boggart, who generated the blog some publicity ( as well as a bunch of headaches we cannot discuss) the other day. Enjoy.

Nick Bogart, channel six reporter sent us an email the other day with questions for his story. Here is the full text of his questions and our answers: (Mr. Bogart's questions are in italics).

Dear Mr. Bogart: I am somewhat flattered that NBC has seen fit to do a story about my humble little blog.

Without denigrating your journalistic abilities, I am sure if you looked hard enough in the Justice Building you could find a judge who has done something or said something more newsworthy than my blog.

Lord knows that when they climb up on that bench they just can't help themselves.
It must be the altitude.

I am also not surprised that you found lawyers willing to comment. Attorneys flock to news cameras like Judges to a free buffet. (Have I given you enough witty comments for your story?)

To answer your questions:

1) Why did you decide that MJB needed a blog? Why did you decide you were the right person to author/edit it?

Everyone's favourite Federal Blogger, David O Marcus was running the south Florida federal blog and one day as I was pondering a stack of bills and no phone calls from clients, it just seemed like a fun thing to do. I am a frustrated writer stuck in attorneys' clothes, and this is a creative outlet for me. The fact that people seem to enjoy it is a plus.

2) You talked to me earlier that you get about 500 hits a day. How does that compare to the first few editions? How did you let people know this blog existed?

I still get about 500 hits a day. Over 125,000 hits since the blog began. I tried to publicize it two ways:

1) I picked a fight with Brian Tannebaum, who at the time was President of the Miami Chapter of the FACDL. As such, he was sending several dozen annoying emails a day to us lawyers, and I thought it would be nice if he would publicize the blog.

2) I also sent a couple of Judges an email with a link. Knowing that most of them have plenty of times on their hands, I was sure they would log on. Knowing that gossiping is by far and way the number one activity in the REGJB, I was sure the site would be used.

3) You've said you felt the interplay between Roy Black and Abe Laeser on the Alvarez case ranks high on your "Best Of" list. Give me some other moments that stand out for you (outside of your peerless pigskin prognostications)

(Yes- I am apparently an amazing picker of football games. Who knew? As one wiseass wrote, I should be able to pick juries as well as I pick games. )

Clearly the lawyers and Judges who wrote wonderful and kind words about Judge Manny Crespo when he passed away was one of the moments I am most proud of . The same holds true for the passing of Judge Henry Leyte-Vidal. The blog provided a place for the community of lawyers and Judges to share fond memories of the lives these men had lived, and the people they had touched as Judges, lawyers, and friends.

4) How often have you had to step in and expunge personal/slanderous postings? Is there anyone in particular who's had to suffer more than his/her share of slings and arrows of this kind?

Well I believe that I have suffered as Rumpole the most slings and arrows because since I have the power to remove a comment I go out of my way to leave up the comments about me that are derogatory.

I usually remove a comment once a day or so.

Here is the problem: most people like to be able to read the blog and then leave a spontaneous comment. I cannot monitor the blog all day. So if someone leaves an inappropriate comment, then it stays up a while. Also some lawyers have commented to me that if someone makes a comment about them, and they Google their name, the comment in the blog is usually near the top of the list.

Since we as attorneys sell among other things our reputation, this is a serious matter that I try and stay on top of.

5) How do you regard the speculation as to your identity? Would your ability to do the blog be crippled by exposure? Are you one person, or a group?

I feel bad for the people who have been called Rumpole and are not. It must annoy the beejesus out of them. Let me answer the identity question this way:

There are one or two posts I have made that I have regretted, and since removed. The posts were critical of a Judge when I did not have first hand knowledge of the incident. As attorneys we have an ethical obligation not to be critical of a Judge in public. How that balances against our first amendment rights I do not know, since I am a simple criminal hack.

I have tried to be fair in any public commentary of Judges. In fact my post today (the other day) about a new policy by Judge Tunis is I think, a fair recounting of the issue from both sides. I think she is a great judge, but is wrong about the issue of no continuances at sounding.

Could I write the post I wrote today If my identity was known?

Well if it was about Judge Tunis, the answer is yes, as she is a great Judge and would not hold my comments against my clients. Some other Judges may not be so judicial.

Judges in Broward would probably hold a public tar and feathering if they knew who I was.

In the end, I do have to earn a living. I am a pretty fair lawyer and I would be crushed if clients stopped coming to me because of negative publicity about the blog.

I take the fact that I am anonymous very seriously.

I realize that with the amount of readers I have I could publicly humiliate a judge or prosecutor who got me angry in court. That would be an abuse of the power that, in a sense, my readers have entrusted to me.

I try and write and act responsibly. I have left posts that were very mean about me using my real name (by readers who did not know I am Rumpole, if you understand what I mean) just so that if my identity was revealed I could show the level of fairness I have worked to achieve.

Being around cops and criminals all these years has taught me one thing: the number of people who know a secret is directly proportional to the chance the secret will get out. [we removed the all capitals statement that no one knows our identity]So I think my secret is safe.

I am introspective by nature so this has run on longer than I intended.

In the end two things would make me reveal my identity: 1) if I was appointed a Judge (and the likelihood of that happening is about the same as the chance I have of winning the lottery )

2) If someone gave me a job as a writer. But it would have to be a great job, and I am not sure I am even a good writer.

Good Luck with the story.

POST SCRIPT: I initially liked the story on TV. Then I received a very disturbing email from someone I promised not to name. It got me thinking that it is very unfair for people to accuse anyone of running this blog. The implication being that the person accused would be held responsible for my ideas, my opinions, and this blog. So I am asking everyone (including a certain chatty Administrative Judge who goes on TV) to please stop doing that.

Also, I realize that some very disturbing comments have been posted in the past. I do my best to remove them. If you find one and send me an email, I will remove it. But please do not hold me responsible for what others write. I wish the blog could remain as funny as it has been lately, and as interesting as when Roy Black and Abe Laeser were reminiscing about their famous cases.

I try and balance the principles of free speech against my desire to make sure no one is hurt by this blog. In the final analysis, I would stop this in a second if someone was hurt. My great fear is that I cannot "un-ring the bell" as we lawyers like to say during trial. So while nothing lasts forever, I will keep doing this as long as it is fun, as long as people enjoy it, and as long as we can keep the discussion within certain bounds of civility. Abraham Lincoln had a policy of not sending a letter written in anger until the following day. Upon his death, his private papers contained dozens of letters written but never mailed. Perhaps that is a lesson to all of us.

I cannot even begin to tell you about the Judge in another state that wants to start a trial Monday, work to Wednesday, and then begin again Monday. Suffice to say, I will be busy traveling and arguing and trying to avoid contempt charges. The Captain is a guest blogger and I am certain between the two of us ( and I do not know who the Captain is) we can keep you entertained.

Wednesday, November 15, 2006



Three comments from yesterday's vigorous (and mostly funny) posts merit attention:

A Public Defender writes in to praise the work in Judge Tunis's division.

Let us first say that in reviewing our comments we have never bashed the PDs on their work before Judge Tunis. Nor are we surprised to hear both how well things are going and that Judge Tunis is following the law regardless of the consequences.
If nothing else, Judge Tunis has had her fifteen minutes of fame, and comes out of it looking pretty darn good. (But we still "object for the record" about filing written motions for continuances.)

Anonymous said...
To 8:26am: Rump I can't hold back on this one.

I usually just read you and don't write.

Stepping up to defend the various PDs that go in and out of Judge Tunis' Division as well as other divisions, let's see: we take depos, prepare cases, file rules to show cause (which she grants and excludes witnesses per the rules IF you bother to do the right work), file Demands, get Nolle Prosses, try cases, and oh yeah, actually litigate motions to suppress like the one that involved some defendant looking at a minimum mandatory on a firearm. Which was granted by the judge. That took guts for her, but she followed the law we argued NEVER heard about it because it wasn't a media case, it wasn't on this blog, it was just some normal motion from a couple months ago by someone from our office, just some kid looking at 30 years that walked out because of her legal ruling on the law.

So before you start a pd bashing, hang out in the court and see how hard we work.
Do you know how many times a private attorney files a Demand...uh, like never. We've actually stopped filing them in Tunis' division, because she'll actually try the case within a few weeks.

Quit bashing us because we work harder than you for way less money and quit talking about what you do not know about.

Rumpole states: Just in case anyone thinks otherwise, our feelings are (and you can quote us) Thank goodness for the work the PDs do. We judge lawyers and their skill very critically. Any defendant assigned a Dade County PD has an excellent chance to be represented by a very fine, highly skilled attorney. In our opinion many many defendants do themselves a disservice by hiring just any private attorney. So many of them have no training and are not worth a wooden nickel. Before we are hung in effigy by our brethren, our point is that some of our PDs are the best defense lawyers around.




Anonymous said...
Believe it or NOT...

I am a bystander in Court today before Judge Lawrence King and the attorney representing the defendant in a commercial landlord tenant dispute tells Judge King that the Attorney for the Corporate plaintiff has been suspended from practicing law since August 31, 2006 and presents the Judge documents email from the Fla Bar showing this.

Judge Lawrence King response :"oh I am sure he will work that out..."

Well all you lawyers suspended from law Judge Lawrence King welcomes you with open arms. He will let you get writs, issue subpoenas, get final judgments and if you do not complete that pesky CLE course, oh who cares- its Judge "KING" court room no law license required.

As good Rumpole says see ya in Court where license to practice law is almost always required (exceptions do apply see Judge King's court for details)

Ps. In case you want to know the name of the idiot lawyer who got his bar license suspended "Ian Martinez" Bar #596671

Wow!!! What do you think about that?
If Judges do not uphold the edicts of the Bar, who will?


Ace FACDL bigwig Rick Freedman posted some disturbing news:

Rick Freedman said...

As some of you may have heard, the Court Appointed Counsel program is over budget.

The fiscal year began on July 1, 2006 and runs until June 30, 2007. According to the JAC, the fiscal annual budget for conflict cases is $37,436,067. One-half of the annual budget has already been disbursed. This money was budgeted to last until December 31, 2006, however, due to expenditures these monies were depleted by November 9, 2006.

The JAC is working with the Governor's Office on Planning and Budget and the legislative staff seeking early release of the third quarter monies. Those monies are due to be released on December 19, 2006, or before if the executive and legislative branches authorize early release. The Governor's Office on Planning and Budget has requested additional information from the JAC before they authorize early release of funds.

The JAC has asked us to inform all CAC attorneys to continue forwarding their invoices to them for processing so there will not be an extended gap of payment when monies are released. I will continue to keep you informed as I become aware of new information.

Rick FreedmanFACDL-MiamiChair, Subcommittee on CAC

Rumpole notes: Oh good, the Governor is on the case. Now we have no worries. Here's a thought: Calculate the cost of wasting all the time, energy and paper on following JAC'S arcane rules. Convert that into money, and allocate 10% of that for indigent defense. There will be a surplus.

See you in court.

PS. Our PD commentator wrote a response to our criticism. Explanation accepted.
All is well. Go getem.

Tuesday, November 14, 2006


This post gives the other point of view about soundings and motions for continuances. It deserves to be read as a response to our post yesterday (plus, the writer goes out of his/her way to stroke our ego):

Anonymous said...

Rump: I have found you to be fair and even handed over this past year. You are virtually always a voice of reason. You tell it like it is. I think THAT'S why people log into this blog. If your ideas were always stupid, no one would care. When you think you're right you say so, and when you have been shown by others that you may have missed the mark, you likewise say so. That's why you have the following you do.

You correctly state Judge Dava Tunis's deserved credit for being respected and at the top of the list for any judge we'd want hearing a case. You say she is one of the best and the brightest, but then you write: "Making private attorneys do grunt work for no reason other than to frustrate their ability to continue a case is not the solution."

Come on Rump!

The policy she came up with applies not to just private attorneys, but to all attorneys-including pds and asa's. It also says that if there are legitimate reasons why a motion can't be made in time or in writing, she'll consider that. As far as I know, have seen, and have heard, she never simply denied a continuance because it wasn't in writing.
I have only two cases in there, but it has given me enough exposure to her efficiency. My guess is that it would be more like her to deny something because it's on its 8th continuance and is coming up on two years old, irrespective of whether the newest request to continue is in writing. Then she applies serious pressure toward trial/resolution, written continuance or not.

And as you fairly pointed out, those are 8 continuances that she herself did not grant over those two years. Frankly what I've seen of her in being in the court, I cannot imagine that she's going to deny a first time up or even second time continuance for any reason, written motion or not. She might remind the lawyer of the policy for future times, but as you said she's respected and one of the best and brightest.

It appears like she reads everything that's given to her and cuts down on the time it takes to address something, because she already has read whatever motion you have filed (terminate probation early/motion to travel/whatever) That also means she's not foolish with the decisions she makes. In the times I've been there and talked to the pit people on both sides, I've not had occasion to witness or hear about any strict knee-jerk reaction by her on anything. My guess, and it's just a guess from what I've seen in the flow of the court, is that she's just trying to come up with some policy to create accountability and stop that gravy train from continuing (no pun intended) to flow unchecked.

Besides, have you (or all of us) forgotten that the criminal rules provide for written motions of continuances 'with certificate of service stated by counsel that it's made in good faith'. 3.190(a),(g)(4)? [Rumpole says: We did not forget about that. We wrote that no motion should be put on calendar until it contains that certificate plus independent proof of what the attorney did to comply- like a letter to opposing counsel.]

Asking for something in writing is really not the Judge Izzy Reyes Reduex from last year that you compared this to. By the way, she already took your advice - three to four weeks before you posted it - when she discussed with all the people in her division not putting motions for disco/better addresses, etc. on calendar until they could show by memos or email that they have already made a good faith attempt to get the missing items, to avoid clogging up the calendar.

So, your comments about her are very fair and accurate, but this: ore tenus or nothing else, doesn't hold water. I personally faxed an Agreed Motion for continuance to her chambers sometime last month, asking my presence and my client's presence be waived on a first time up case. She granted it and I got a call from her JA asking me what trial date the state and I agreed to, without requiring my presence at the sounding.

So come on, lets get real and actually practice law. Just from the way she acts and welcomes suggestions in the court, I would imagine a tweaking to this policy could easily be accomplished, maybe by someone talking to her. But to say ore tenus or nothing, is a bit much.
Doesn't sound like that reasoned Rump I've come to know over this past year.

Rumpole says: Well done.

Maybe certain assistant public defenders who have taken to trashing us on TV and saying that the blog is just about attacking people might change her mind after reading your reply.

As President Lincoln once said about changing his mind: "You don't have to eat the whole egg to know it's rotten."

See you in court giving mean looks to a certain PD.

Monday, November 13, 2006






On October 6, 2006, The Florida Bar filed a Petition For Emergency Suspension against Gabriel I. Martin. In their petition they seek "emergency suspension" of Mr. Martin from the practice of law, because he "appears to be causing great public harm."

He is accused of causing great public harm by "assisting a suspended Florida attorney in facilitating a real estate fraud." This began as an FBI investigation into George Louis Garcia and fraudulent real estate transactions. Martin was Garcia's employer. Martin was subpoenaed on May 15, 2006, given two extensions, and finally complied with the subpoena on July 10, 2006.

Pursuant to the subpoena, Martin produced bank statements and canceled checks from his trust account for the period May 1, 2005 - December 1, 2005, along with incomplete receipt and disbursement journals. He supplied no client ledger cards or any of the files requested in the subpoena. At a later date, Martin turned over additional bank statements and canceled checks for Jan. 1 - June 30, 2006.

Martin told the investigators that he employed Garcia "to carry out real estate transactions." He explained that he permitted Garcia to conduct real estate closings, deal directly with buyers, sellers, brokers, real estate agents, lenders, bankers, appraisers; he let Garcia execute HUD-1 statements, make deposits, prepare all checks, and more. Martin signed the title insurance documents and the checks. Martin failed to supervise Garcia's actions in his office.

According to the records produced, Garcia had signed every single HUD-1 settlement statement as the Authorized Representative, he held himself out to be a practicing lawyer, and communicated with the lenders by giving them instructions of how, when and where the funds to buyers were to be deposited.

With Martin's "acquiescence, Garcia not only represented himself as an attorney in good standing but also directed a vast conspiracy to defraud lenders and other by conducting fraudulent real estate closings." Garcia, using straw buyers, brokers and others participated in at least 92 fraudulent closings.

From April 12, 2005 - August 3, 2006, Martin signed 104 checks totaling $1,547,780.91, payable to Garcia from Martin's operating account. He also signed 12 checks totaling $469,118.14, payable to Garcia from the Trust Account.

The Florida Bar accuses Martin of "apathy" in that he permitted Garcia to conduct operations in his name and for his failure to comply with the subpoena duces tecum served on May 15, 2006. Despite being served on May 15, 2006, Martin failed to investigate Garcia's operations. Further, he continued to allow Garcia operations to continue, "allowing Garcia to perpetrate fraud in a host of other real estate closings." At least 13 other closings took place between 5/24 and 7/14 and approximately $8,865,432.64 from lenders was received in the Trust Account.

Martin showed up at the Florida Bar offices on July 10, 2006, and denied knowledge of what was going on in his office. At the same time, a wire transfer of $4,468,601.25 was received into his Trust Account and business continued unabated. As a title agent, Martin is required "to follow the lender's closing instructions." He must ensure that the final HUD-1 Statement accurately describes the receipts and disbursements of the closings. Martin never ensured that this obligation was met......

Sounds like Gabe Martin and his attorney Richard Baron will have lots to talk about after Mr. Martin finishes up the chop shop trial before Judge Greene "north of the border".

Rumpole notes: uhho. And you can quote us.










Well, we have the same problem again.

Careful and long time readers of the blog remember when readers complained about Judge Reyes’ putative policy of not allowing continuances at sounding. Out of nowhere, Judge Larry Schwartz jumped into the fray agreeing with the readers (but not criticizing his colleague). To his credit, Judge Reyes listened to the complaints and agreed to change his policy.

Now word reaches us that Circuit Judge Tunis has adopted a similar policy. The request for continuance must be in writing and filed five days before the sounding. We like Judge Tunis. We respect Judge Tunis. Judge Tunis is at the top of the list of any judge we would want hearing a case.

But she is wrong. And here is why:

It is not easy being a private attorney these days.

There are more cases, but there are also more lawyers.

Only a very few attorneys are at the pinnacle of their profession and able to pick and choose their cases. For the rest of us, the business of law is a careful balance of quantity versus quality. We need to take on more cases for less money. Much like doctors under the thumb of an HMO, private attorneys are constantly struggling with the problem of having to handle more cases with less time available to devote to each case and client. It is an unfortunate result of the economic climate.

With time at a premium, the last thing we need to do is remember that of the twenty some odd (no offense intended) Circuit Judges, one requires a motion in writing five days before the sounding.

Our client’s face an ever increasing array of minimum mandatory sentences. More cases require bringing the case to trial or to the verge of trial before clearer heads (read: reasonable prosecutors) prevail.

If you handle federal cases, even when you have a client that can afford your services, you have to watch out who pays you and how, or you can end up on the wrong side of the jury box.

If you take court appointed work, you have to now deal with a bureaucracy in Tallahassee that is so complex and incompetent that a secretary recently admitted to us that the person who handles the help desk gets more calls per day than the rest of the office combined. You need written authority to do just about anything outside of getting your client a cup of water at trial.

The bottom line is that the average criminal practitioner is under more pressure to defend clients facing more jail time, and does not have the time to spend writing motions for continuances and making sure they get filed on time.

Yes the motion takes a minute or two on a computer. But the real problem is remembering that cases in that division require a five day notice before the sounding.

Many of us spend our days putting out fires when not in trial. There are a myriad of reasons and problems that crop up every day that keep lawyers out of the office. If that day happens to be the 6th day before the sounding, then you have missed the deadline and are out of luck.

Apparently Judge Tunis’s division has a problem with old cases. This was a problem she did not cause, as the backlog occurred before she arrived. Making private attorneys do grunt work for no reason other than to frustrate their ability to continue a case is not the solution.

Judge Pinero has a low case load and he does not require motions prior to the sounding.
Judge Pinero has a realistic view of the criminal justice system and he can separate the wheat from the chaff. He knows which cases are worth extra time and attention and which cases should be resolved quickly.

You want to lower your case load? Tell prosecutors to stop making unreasonable pleas. Don’t accept a prosecutor stating that their supervisor told them to try the case. Get the supervisor’s butt in court and make them sit there for the three days it takes to try the possession of cocaine or resisting with violence case.

How about these ideas:

Set a discovery schedule for each first degree felony or above, and require monthly reports to the court; Judges should intervene with reasonable plea offers when prosecutors offer five years on a first offense third degree felony “because the victim wants the max”; deny continuances at the sounding for legal and reasonable reasons, not just because an attorney was otherwise busy and missed an arbitrary deadline; refuse to calendar discovery motions or other motions that can and should be worked out between the attorneys when the motion does not include the required affirmation stating the actions taken by counsel to resolve the issue prior to filling the motion; require the police departments to pay the costs of the court reporter, witness fee, and service of process for every deposition an officer misses without good cause.

In short, if you want lawyers to be more lawyerly, then set rules designed to achieve those goals, not arbitrary rules designed to make the practice of law more difficult for everyone.

As we said: we think Judge Tunis is one of the best and brightest new Judges.
But this policy is wrong wrong wrong.

Or to quote a wise Rabbi from Brooklyn we once knew: “That dog won’t hunt.”

See You In Court.

Sunday, November 12, 2006








Fresh off our amazing pick of the Dolphins to beat the Bears outright, and still sizzling in our over/under picks, we offer this for your fun and profit:

Jets +10.5 at Patriots. And take the under 39 while you're at it.

Chicago at Giants: under 37. This is an awfully low number, but the NY weather is storming, so go with a low scoring slugfest.

Chargers at the Bengals: Over 48. High number. Close your eyes, take a deep breath, and make the plunge.

Redskins at Eagles: under 43, and while you're at it, take Philly and give the 7.

Coming tomorrow (assuming we get up early enough to post and make our 8AM hearing:

SOUR SOUNDINGS REDUX: Can you guess which "newer" Judge decided to prohibit ore tenus motions for continuances at soundings? Didn't we fix this problem several months ago? Tune in and read all about it.

And finally the day you’ve all been waiting for: OUR ONE YEAR ANNIVERSARY. Read about the critics who said we’d be quickly discovered and banished to Hialeah branch court to serve the remainder of our days defending petit thefts and resisting without violence before Judge Schwartz.

Read excerpts from our early and awful posts.

Read about the triumphs and the tragedies, the humor and the touching remembrances of lost friends and colleagues.

Relive the exciting early days of the "not afraid to sign my name club", and watch as the internecine PD wars unexpectedly explode across the blog.


Saturday, November 11, 2006

11 11 1918

On the eleventh hour of the eleventh day of the eleventh month 86 years ago today, the guns on the Western Front fell silent.

Four years of what we now call the First World War had come to an end.
For the first time, but not the last, American men fell on European battlefields to rescue peoples and nations from the cold dark plans of despots.

It is all too fitting that as we enter this season of giving thanks, that today we remember, lest we never forget the sacrifices those men made.

And while American men and women now fall again on foreign battlefields, we never abandon the hope and simple prayer of never again.

Someday, when our children are grown, or when their children are grown, wars will be a distant memory of the past. We cannot keep sending our young to die for the decisions made by the old. How many Beethovens , Einsteins, Gates, or ML Kings died on the battlefield before they had their chance to make their world a better place? And we are not just talking about Americans. Radical Muslims send their children to be martyrs, while they rest comfortably in their hideouts. Their god or any god you believe in, will never forgive them.

Because our history and our people show that Americans do not start wars but finish them (present day disasters excluded) , we remain hopeful that our proud nation remains, in the words of Lincoln, the last, best hope for peace on earth.

Friday, November 10, 2006


Today, with Americans fighting and dying in two wars, it seems fitting to remember that all we do and say, here on this blog, in court, anywhere, is because for over two hundred and thirty years Americans have answered the call to fight for freedom against oppression.

Agree with the wars or do not agree with the wars. For 364 days we can argue and fault our politicians for getting us into those wars.

But today is a day of remembrance and thanks.

Dozens of Americans every month are being buried in Arlington cemetery. The Boys of the trenches from WWI and the Boys of Normandy from WWII lie in French cemeteries, never to return to their homeland. But never forgotten.

The Boys of Guadancanal and Iwo Jima rest for eternity on islands on the other side of the world . Most Americans will never see their distant, lonely graves. But today we remember.

The Pilots and Sailors from the Carrier Lexington, sunk in the Battle of the Coral Sea, rest in the Pacific. No graves mark their sacrifice. But today we remember.

We could go on and on. Thousands of battles in world wars, from Africa to China.
The Marines in Korea. 50 thousand names on a black wall in Washington for the men and women who died in Vietnam. Antietam- the bloodiest day in American History, and only Americans fighting each other died.

Whatever the war; wherever the conflict, Americans have answered the call.

Today we remember.

And while it doesn't seem nearly enough:

Thank You.

Thursday, November 09, 2006


Election season is over. Wasn't that fun?

Now that all the votes have been counted, where do we stand on the issue of merit retention of judges versus the current system of direct elections?

As Judge Glick points out in his post yesterday afternoon, there is no correlation between merit retention and the public’s knowledge of a Judge.


History has shown us that no matter how disliked,and/or incompetent a jurist may be or how well thought of and supremely competent a jurist is, the public has no clue.
Virtually every merit retention election scores about the same across the board. 70 to 75% of the voters say "keep them" while 25 to 30% of the voters say "throw the bums out", without ever knowing if they are heroes or bums.
Therein lies one of the arguments for elections versus appointment and merit retention. Congrats to the newly elected Judges. As for how any individual new judge will be on the bench, there will be some stars and some duds as in any profession. My hope is that they will be given a chance to blossom.
The same theory about newly released movies should apply to new judges, Go see the movie yourself and don't judge a movie by what some reviewer tells you.
You may be very surprised.
Thanks for listening

Rumpole ruminates: what makes Judge Glick or any proponent of direct elections believe that an uninformed public would have any better knowledge of either candidate in a direct election? Judicial rules of conduct do not allow for a discussion of the issues. The candidate just gives their name, length of time they are a lawyer, and the fact that they joined Judge Rosinek’s Kiwanis Club six months before the election to put something else on their election pamphlet.

The discussion for the last six months was whether a clearly qualified Judge like Steve Leifman would be able to win an election against a clearly unqualified candidate with a popular Hispanic name. Recent history proves that the unqualified candidate does not have a free ride. But ask Judge Leifman just how expensive and time consuming it was to get his message out. Plus, there is a distinct possibility that the weather on election day kept many people home who would have otherwise voted against Judge Leifman. That election may have been a fluke, and how comfortable are we with the idea that it takes a fluke for a qualified Judge to retain his seat?

The election in 2004 saw two very experienced and extremely well qualified sitting circuit court judges lose to candidates who, while they may have been fine lawyers (personally we had never heard of them) , had demonstrated nothing that would merit their election at the expense of the very experienced Judges they were replacing ( and these judges would do well to keep that in mind).

It was clearly a name issue in 2004 and there is no guarantee that elections will not be a name issue in the future. And lest you think this is sour grapes by a white male ( we are not confirming or denying our ethnicity, si?) lets be clear that for the preceding 30 years all it took was the last name of Klein to get a safe spot on the bench. As one former judge remarked, “nobody was crying for Rudy Sorondo when he could not get elected.” Yet history has shown the governor made an excellent choice in appointing Mr. Sorondo.

We are not pining for the old days when there was the same problem, just with different types of names. The same potential for a mediocre judiciary existed then. We demand the best in our judges. The average and below should just move North of the Border, where like cows to a salt lick, they seem to congregate

So where are we and where are we going?
We have no idea.

There are strong arguments for and against direct elections, and for and against appointments and merit retention. Perhaps the current amalgamated system is best.
Some very good judges could never get an appointment.
And some very good judges could never win an election.

The final wisdom in Judge Glick’s post is unimpeachable: Don’t judge a judge by what the other attorneys say. Judge him or her by your own experiences.

We should give our newly elected Judges a chance.

(And of course when they do screw up, we are here to let the world know about it. )

See You In Court.

Wednesday, November 08, 2006


We received this email last night:

moons over Miami Inbox
6:58 am (42 minutes ago)
From North of the Border.

Out Spent about a million to one,
Out Endorsed about a zillion to one,
“Judge” Michele Towbin Singer received 61% of the votes.

And the Captain reported that Terry Ann Miller, formerly a Judge in Dade has been elected to the County Court Bench North of The Border.

If you recall, Judge Miller had the audacity to run against a sitting Broward Judge a few years ago. In the land North of the Border that is a capital crime for an attorney, especially when you lose, which she did to Judge Zack. Ironically, Judge Zack is one of the decent Judges up North.

It will be interesting to see how Judge Miller is treated by her colleagues. Our prediction is that she will receive the same professional and warm treatment that the average attorney from Miami gets when they venture up North.

We applaud both Judge Miller and Judge Towbin Singer for their courage and tenacity. Just don't forget about your Dade friends when you take the bench.

(Maybe it's the water up there, but something happens to the average Judge up there that makes them view attorneys from Miami just a notch above Al Queda, and sometimes not even that high.)

See you in Court, just not you know where.

Tuesday, November 07, 2006



100% Reporting:

Marisa Tinkler Mendez

Catherine 'Cathy' Parks

Cathy Parks loses a second tight runoff race. We suggest a good biography of Lincoln or Churchill, or both. Keep the faith.

693 of 744 Precincts Reporting



Valerie R. Manno Schurr


Jose R. Sanchez-Gronlier

TOTAL: 303,261

Marisa Tinkler Mendez

Catherine 'Cathy' Parks

TOTAL: 306,146

Michael A. Bienstock

Jose L. 'Joe' Fernandez

TOTAL 308,615


NATIONAL ANALYSIS: EVERY 12-14 years since the Civil War the House has changed parties. While this is a nice night if you are a Democrat, it is not surprising nor unusual.

A Democrat won the Senate and Governor's race in Ohio today. If Kerry had won Ohio, there would probably not have been 2000 soldiers killed in Iraq.
The Ohio wins are good news if you're a Democratic Presidential Candidate in 2008.