ENOUGH IS ENOUGH

Updated for Thursday:

rick freedman said...

This is the message from the JAC re funds for Court Appointed Counsel:

The Justice Administrative Commission has processed a request for early release of 4th quarter funds for the Court-Appointed Criminal Due Process and Dependency/Other Civil Due Process appropriation categories. The Governor’s Office has notified the JAC that these funds for both appropriation categories will be released on Monday, February 5th.

As of January 29, 2007, funds in the Court Appointed Criminal Due Process category were exhausted.

Currently there are adequate funds available in the Court Appointed Dependency/Other Civil appropriation category. The Chief Financial Officer’s staff has requested that JAC continue to send over payment processing data on a daily basis, so that when funds are available on Monday, they will be prepared to process this week’s payments as soon as possible. Payment requests submitted by the JAC to the CFO this week would likely either be returned to JAC in the form of a check to be mailed to vendors, or deposited in vendors’ accounts via the direct deposit process next week, many as early as Tuesday.

FACDL and FACDL-Miami will continue to lobby the appropriate officials, (state senators, state house reps, members of the criminal justice appropriations committee, governor's office, etc.) to try and resolve this funding problem.
We appreciate your support.

Rick FreedmanFACDL-Miami

Rumpole says: This has got to be resolved. Nobody wants to incarcerate innocent people. If they run out of funds to pay for competent representation, that is just what is going to happen.

Here is our concern: there is plenty of money to pay for more officers, new courthouses, more judges, and politicians who run on "get tough on crime" platforms. But when it comes time to paying for the lawyers- and we mean prosecutors, PD's, and indigent defense, there is no money. In federal and state court, private lawyers are paid about 90 bucks an hour. That is a lot of money, until you pay rent for an office, 40 thousand for a competent secretary, plus medical, plus a year end bonus, plus all the other expenses necessary to run a private practice. Then the 90 an hour becomes a loss leader. Which is OK as well, so long as we didn't have to beg for it, fight to not have the bills cut, and then fill out form after form to get paid, only to have it kicked back because one form was signed in black ink instead of blue ink.

Let us be clear- we rarely accept court appointments. We do so only in cases that catch out eye, or in which a judge has specifically requested out help. But we have been in practice a while, and do not depend upon court appointments. But other lawyers do, and the problem is that there ability to effectively defend indigent clients is compromised when they have limited time to devote to their indigent clients.

The system is broke and needs to be fixed. As a purely altruistic exercise (something we are normally philosophically against) we will ponder this problem over the weekend and post a solution on Monday.

ETHICS

A putative prosecutor complained on the blog last night about defense attorneys who announce ready when the state asks for a continuance and then the next time the case is up, the defense asks for a continuance to take depos, file motions, etc., when the state announces it’s ready for trial. The prosecutor believed this was not ethical.

Rumpole responded that lawyers (on both sides) who use the system to their client’s advantage are not acting unethical.

Query: What is ethical, and what courtroom manoeuvres have you seen that have crossed the line?

Have at it.

See you in court, not objecting to first continuances, and announcing ready for trial.

PS. That’s how we spell manoeuvre at Eton.

A QUESTION ANSWERED 36 YEARS LATER

In 1971 a young John Kerry , fresh from Vietnam, testified before Congress and said this:
''How do you ask a man to be the last man to die for a mistake?"

Last week Senator Kerry announced that he would not be a candidate for President in 2008.

John Kerry lost the race for presidency in what was to him, and his advisors, a stunning defeat. As election day proceeded, buoyed by final polls and early exit polls, Kerry’s advisors started calling him “Mr. President.” Then Bush won Ohio, and that, as they say, was that.

Over 3,000 Americans have died in Iraq, and over 45,000 have been wounded. Today the situation is worse than the day after the war began. If you read Bob Woodward’s latest book, State Of Denial, you know that the responsibility lies squarely on the shoulders on former Secretary of Defense John McNamara, …I mean Donald Rumsfeld. Rumsfeld thought he was smarter than the military; he surrounded himself with a group of generals he could cower and browbeat, and he dismissed those professionals who said it would take 600-700 thousand troops in Iraq once Baghdad fell.

When people criticize the Bush administration, they tend to focus on the illusory weapons of mass destruction. While there is significant testimony and proof to suggest that professional intelligence officers were telling the White House that there was no proof Hussein had WMD’s, the bigger crime, the larger mistake , was in the way Rumsfeld bullied the White House and the military.

From Collin Powell and Dick Armitage, to General Tommy Franks, to Former Chairman of the Joint Chiefs General John Shalikashvili, the professionals told Rumsfeld and Bush that not nearly enough troops were committed or available to secure Iraq after the war.

Former President George Herbert Walker Bush’s decision not to invade Iraq looks, in retrospect, a wise decision. Then again, wise decisions are made when responsible individuals who have a lifetime of experience are in the position to make decisions. Responsible decisions are made when there is not one egotistical man bullying everyone around him.

Mistakes are made when rank amateurs who believe their ability to appear pious and religious is more important than silly things like experience, intelligence, and professionalism.

President Bush wants to send 20,000 more troops to Iraq. His generals, HIS GENERALS - told him in December they need about 7,000 more troops. Once again, the professionals are being ignored.


36 years after John Kerry asked

''How do you ask a man to be the last man to die for a mistake?"

President Bush apparently has the answer.


First Person Post Script:

I lived through the Vietnam war and it’s aftermath, albeit at a much younger age. I came of age with a generation that studied Vietnam and the failures of the military and political leaders. Military thinkers and civilian theorists have written countless books and papers analyzing and dissecting the failures of Vietnam. Slowly our country emerged from the Vietnam hangover on the national consciousness. One could say President Regan was responsible for the beginning of the responsible and effective use of American Military power post Vietnam.

Then we had the first Gulf War and the Powell/Bush Doctrine: American military power should be used in specific situations where the U.S and an international collation can apply overwhelming force with specific goals identified, and reasonably obtainable. The Powell/Bush doctrine worked. The United States threw Iraq out of Kuwait in less than 100 hours of ground military action and less than 100 coalition deaths. Our standing in the world had reached a new zenith.

Then in less than 15 years a bunch of egotistical fools ruined it all. What I find amazing, in a twi-light zone sort of way, is that we are back to 1971. With the lesson of Vietnam clearly learned (so we thought), we are now back to arguing about the effects of a total withdrawal in the face of defeat, paralyzed by inaction, while Americans die. For a mistake.

Maybe that’s what happens when we have a President, Vice President, and Secretary of Defense, who all avoided military service in their youth.

Perhaps character in youth counts for something after all.

"How do you ask a man (or woman) to be the last to die for a mistake?"

I don't know. But I do know you never get into that position unless you make a series of mistakes to begin with.

The tragedy of Iraq is that we knew better. And the professionals who knew better were ignored .

GENARLOW WILSON

For those of you logging on to see the normal Sunday blog post, I know the feeling of going through Football withdrawal. Try the NFL channel on cable. I thought the least we could do is leave the Wilson post up all weekend so as many people as possible can see this injustice.

A thoughtful reader left this comment:


2 white seton hall college students get 5 years prison for the death of 3 students from smoke inhalation due to a fire they set. A black honor student gets tens years in prison for [consensual oral sex] . what a country.

There will be a new post up tomorrow to start the week.


SHAME ON GEORGIA.

SHAME ON AMERICAN JUSTICE.


When he was 17 years old, Genarlow Wilson, a 17 year old African American teenager in Douglasvile Georgia, was receiving post cards from Colombia and Brown, wishing him luck on his SAT’s and hoping to recruit the football star to their University.

Now that he is 20 years old, Genarlow Wilson sits in a cell at a Georgia State Penitentiary, two years into a ten year minimum mandatory sentence for having oral sex with a 15 year old girl when he was 17.

During the criminal case, everyone, including the young woman and the prosecution agreed that the sex was consensual and requested and initiated by the young woman. At the time, in Georgia, it was a misdemeanor for teenagers less than three years apart to have intercourse, but a felony for the same teenagers to have oral sex.

Based on the publicity of the case, the Georgia legislature has sinced changed the law, but the legislature did not make it retroactive to Wilson’s case.

According to the 2000 US Census, there are about 18 million teenagers in the US.

One of every 3 girls has had sex by age 16 and 2 out of 3 by age 18. Two of 3 boys have had sex by age 18. [Source: National Campaign to Prevent Teen Pregnancy]

By our crude calculations, 7-10 million teenagers should be in that jail cell serving time with Wilson.

From the ESPN article about Wilson:

Two days later, in February 2005, Genarlow Wilson walked into a courtroom. Two charges already had been dropped, and it was clear from the first witness that the rape charge wouldn't stick either. The aggravated child molestation, though, was on tape.

Genarlow tried to defend himself against the assigned prosecutor, Eddie Barker.

"Sir," Wilson told him, "you don't even know me. I understand you're just doing your job, sure, but I mean, how would you feel if you were my age and you were put on the stand with these serious charges at this young age? I have a little sister. Why would I molest anyone, sir?"
"
I'm not on trial here, Mr. Wilson," Barker said. "You're the one who did these acts, not me."

The day before the trial was expected to end, in the last night he'd ever spend at his home, Wilson went to a church down the street and asked the preacher to pray with him. He awoke early the next morning. He knotted his tie carefully and went to the courthouse. The trial finished that afternoon, and the jury came back with "not guilty" on the rape but "guilty" on the aggravated child molestation.

He looked at the forewoman.
She was crying, seeming to understand they'd just undone a promising future. Indeed, when the jurors found out there was a 10-year mandatory minimum sentence, several were incensed.
The prosecution told them to write a letter, then moved on to the next case.
ESPN ARTICLE


Wilson is a young man who was a local high school sports hero. He was going to college. He was going to play collegiate sports and get an education.

We don’t often quote the bible, but it seems apropos here:
“Let he who is without sin cast the first stone.”

Prosecutors are supposed to wear the white hat in courts. Judges are supposed to stop injustices from occurring. Go read the ESPN article. Read the NY Times editorial. And then tell us whether this young man should be in prison until 2015?

When we read stories like this, we can’t help but cringe when some windbag politician or Judge waxes eloquent about the great American criminal justice system. So long as Prosecutors and Judges standby and let Genarlow Wilson serve his prison sentence, there is nothing so great about our justice system. What kind of society produces Neanderthals who would write such laws, and then see them enforced on the Genarlow Wilsons of the world?

For shame. For shame.

See You In Court.

The 70's

Some people have been discussing history on the blog. Here are two great comments that went up last night.


abe laeser said...

Ah, those heady days of Watergate. A very junior prosecutor like me trying to snoop for any way 'in' to the case that brought down the President. But the real work was always at the top, with Gerstein and Carhart actually running the case, the facts + law in a very hands-on manner. Marty Dardis had all of the skills of a great investigator. Real sense of reading people, street smarts, dogged tenacity, and the ability to put it together to prove a crime. None better in my years. No others really close.

Busy watching 'All the President's Men' on AMC - brings back the days when journalists were at their zenith.-- and the SAO was so small you could hardly call the structure a bureaucracy. 37 lawyers, not 300. A 'band of brothers' who knew each other's cases well enough to step into the breach.

We had 'vertical filing'. You screened your own cases, and filed only those you felt you could prove to a jury. Caseloads were LOW because if you filed garbage it was your case for trial.It must be late, I am starting to lament the 'good old days'.

On the other hand, what Gerstein and Dardis did led to the imprisonment of two Attorneys General of the United States, and the resignation of the President.There have been no such stories since -- and I hope for our country's sake, there never will be again.

For those of you new to our little world , State Attorney Richard Gerstein's chief investigator was Martin Dardis. Janet Reno's chief investigator was George "Ray" Havens.

Anonymous said...
George Ray Havens claim to fame was or, more appropriately, came as a result of his work with the then Metro Dade Public Safety Department’s Organized Crime Bureau “OCB,” a unit created by and under the supervision of Steve Bertucelli, after Wilson Purdy, a retired FBI Agent was brought in as Director of the Metro Dade Police to clean up Dade County, after the elected Sheriff was abolished.
George Ray was a lieutenant in the unit. At the time, with the perceived mandate, OCB undertook some really “intense” investigations and employed “creative” techniques.

The primary objective of the OCB unit was the County Commissioners and other County Hall personas. These individuals and their confidants and “social acquaintances” soon became the target of electronic surveillance and other covert and unconventional Ops. No one was safe, not even the girlfriends, mistresses, or escorts who often filled the political parties. (Heck if Joe Centorino had this crew with the electronics of today all his dreams would come true).

It all unraveled on E. Wilson Purdy and his crew, when several Commissioners were arrested, and some unconventional investigations were discovered. The OCB crew went running for cover, including some “associates” who were lending their talents to the unit in violation of their own agency rules by engaging in domestic tasking with their OCB buddies.

George Ray was then hired by Janet Reno to replace Martin Dardis, but George Ray was never given nor had the same latitude as Dardis had under Richard Gerstein, nor was Janet Reno of the same mind set as her predecessor. Thus, it is unfair to compare George Ray to Dardis in that regard. Oh, by the way, George Ray’s trusty confidant Wayne Black deserves honorable mention as contributing to George Ray’s professional achievements. Hell now I really feel old, but am glad I am still around to recall.

Rumpole wonders if any of the lawyers, prosecutors or defense attorneys, from those corruption cases are still around to talk about them.

Great comments. See You In Court.

E. HOWARD HUNT

Miami has a long and storied tradition of providing, if nothing else, a certain flavor and uniqueness to our Union of States. There was the February 1933 failed assassination on President elect Franklin Roosevelt; stories about shady people and a Miami/Cuban connection in the conspiracies surrounding the assassination of president Kennedy; several Miamians were identified and investigated as the “plumbers” in the Watergate scandal. Our own SAO chief investigator's look into the Plumbers and the money gained national attention: Martin Dardis's investigation was portrayed in the book and movie All The President's Men.
No one can forget the " Hanging Chads" and the contested 2000 presidential election. Currently the Padilla prosecution makes national headlines about every other day.

Miami and Florida seem to attract a rogues gallery of colorful characters.

Yesterday, the NY Times reported the death of one of the central figures in Watergate: former CIA officer E. Howard Hunt, who passed away yesterday in our fair city at the North Shore Medical Center.

Hunt was a CIA officer involved in the Bay of Pigs invasion, and later was hired as a $100.00/a day “security consultant” for the Nixon white house.

The Times had this quote: “This fellow Hunt,” President Richard M. Nixon muttered a few days after the June 1972 break-in, “he knows too damn much.”

Hunt was not a native Miamian, but he spent much of his life here, and his death reminds us that our town has always been known for its collection of colorful figures who have, and will continue, to cast a large, if not unexpected shadow on national events.

It’s why living and working here is so much fun.

See You In Court.

MAIL BAG

Rumpole responds to some posts:

A PD ticked me off. He wrote this, inter alia:


Regardless of what has been said about Phil on this blog, which I think is often said for the same reason (to drive him nuts), he is way too cool of a guy to sit around blogging about gossip all day. I am relatively sure that he is not Rumpole. i think it is time to find another suspect.

Rumpole huffs:

Dear Mr PD:

We have refrained from commenting on how you and your friends spend your free time. As they say in Hoboken, New Jersey, and Crawford, Texas, “ I don't have a dog in that fight”.

Then we read this morning your dicta inferring that we spend all our day gossiping. Ignoring for the moment your questionable judgment on coolness, there are bigger fish to fry here. Where were you when our posts on important legal issues brought " zzzzzzzzz" out of the woodwork?

Did you write in with your thoughts on sentencing and whether a Judge should enhance a sentence after a trial?

Did you contribute to the conversation of the death penalty?

How about the issue of mistaken eye witness identification?

Did you bother to share your opinions about drug minimum mandatory sentencing?

The point is, we write about serious legal topics. It is your brethren in the hallowed halls of the PD’s office who spend their time talking about who is sleeping with whom, and who sleeps in their cars. The evidence on this blog is that your office contains the largest group of gossipers, malcontents, and lately, lawyers who suborn perjury in capital cases.

We are sick and tired of having people read the comments and attribute them to Rumpole. We don’t write that crap. So before you continue writing that Rumpole spends his time gossiping about people, I suggest you READ the blog, before criticizing the person who writes the blog.

The defense rests.


A Lawyer North of the Border responded to a post about a Broward Prosecutor who lost a case, and has been assigned to Mr. Cholakis’s case:

Way to poke a stick in the ASAs eyeball. You guys in Dade have a lot of class -- WOW! And, you really are smart too...in Broward, we would never come up with the idea of taunting the prosecutor on a case. Hey, do you think you jackasses could put on a CLE seminar on how to piss off and dare a prosecutor? Should be able to sign up tons of people for that. Wow, what professionals.
s/ Above you in latitude and class


Rumpole responds:

We don’t know about the rest of you, but we can tell when we have been insulted. From the likes of what we have seen North of The Border, Broward Lawyers wouldn’t taunt a prosecutor because they are too afraid of getting them angry and losing their bottom of the guideline plea offer.

Of course there are exceptions to every rule, and Broward has a contingent of dedicated defense lawyers that try their share of cases. But we will not stand by silently and be lectured by some (ostensibly) “jeans wearing, no tie, good ol’boy defense attorney who cowers before Judges lest they tick them off and not get called out of turn first.”

The State Attorney of the 17th Judicial Circuit has an announced policy of not dismissing cases once they are filed, even when discovery shows that a client is innocent. The Broward ASA’s have told us, and others, that their office policy is that the jury should be the one’s to find someone not guilty. And the defense bar North of The Border just sits there and lets them get away with it, without nary a bar complaint filed.

Anyway, we welcome our friends North Of the Border to Dade and our blog. We may be wearing a suit and tie, but we still feel some kinship with you and your kind.
Plus, your signature was kind of funny.


See You In Court, not wearing jeans.

RULES

In the past year we have gained a lot of new readers. And lost some old ones.

Maybe it’s time to review the rules.


1) Mission statement: To provide an outlet for lawyers, Judges, and others who work in the REGJB by creating a place to post comments about our little world. Light hearted rumor, innuendo, and humor are welcome. So is a serious discussion of the issues of the day.

2) You cannot post anything about someone’s personal life. From seeing a judge’s children at a school, to seeing a prosecutor and pd in a bar, the personal stays off the blog.

3) You cannot make fun of a person’s appearance, or the appearance of a loved one of theirs.


4) Don’t be mean. If you don’t like someone, this is not the place for it. If a lawyer blew a closing argument, this is the place for it. If a judge ruled against you, you cannot call him/her an ass. If you get them reversed on appeal, this is the place you can gloat. You can raise the legal issue and have a discussion about it here.


5) Yes, there will be serious moments. When someone we know is arrested, it hurts all of us. But this is not the place to gloat or revel in someone’s pain and misfortune.

6) This blog has soared. Read the posts about the late Judges Crespo, Leyte-Vidal, and others who have passed away. Read the repartee and remembrances between Abe Laeser and Roy Black. Those posts and comments were the best we can be. When I grumble about the new plea colloquy, this is the place for Judge Emas to put me in my place for not reading the new amendments to the Rules Of Procedure (which I am sure he does every Sunday over Coffee).

Very simply, those of you who are so full of anger and rage and jealousy need to get another outlet. I cannot and will not let you turn this blog into a place for you to trash people while you sit, alone in some darkened room eating a bag of Doritos and a half gallon of Hagen Dazs on a Saturday night, writing all sorts of vile things against us (the lawyers and Judges who work in the REGJB). If necessary, I will turn on moderation, and review all comments when I have a chance. Quite frankly, as I have written dozens of times, this blog is for my own selfish enjoyment. I could care less if you (whomever you are) are upset that you cannot spontaneously attack someone.

This blog can, has, and will continue to be a place to discuss things like Judicial demeanor, the efficacy of the death penalty, and the Mushroom bisque at Au Bon Pain (not bad at all).

It will not be a place to call people vile names.
So stop it.
I mean it.
Really.
I do.


His Holiness the 14th Dalai Lama’s Third Verse for the Training the Mind:

May I examine my mind in all actions and as soon as a negative state occurs, since it endangers myself and others, may I firmly face and avert it.


(Rumpole is a Buddhist????)

PS. We Called both championship games, but didn't need the teaser. Early favourite has to be the Colts. Will someone please put a wooden stake in Belichick? Otherwise he will rise with the un-dead to walk the South Florida nights and torment us all.
By the way....Tom Terrific threw an interception on the game winning drive last week....and Tom terrific threw an interception on the game winning drive this week. Hmmm...don't really want him QB'ing the team when the chips are on the line.

CHAMPIONSHIP SUNDAY

You take these picks with the warning that I have cooled considerably from my earlier proficient prognostication.

Being therefore fully advised and warned, you can bet the mortgage as follows:

PATRIOTS AT COLTS.

Those of you following my picks know that I think little of the Patriots and Tom Brady.

Let me clear up one misconception: Tom Brady LOST the game last week. Troy Brown rescued his sorry butt. It was fourth down. 10 to go. Tom terrific took the snap, scrambled back, and let fly a perfect interception. Less than 2 minutes to go. Chargers up by 8. Game over. Then Troy Brown strips the ball from the DB who intercepted Brady. Belichick has a deal with the devil you know. Only he and Brady could be the recipient of such luck. Anyway, Mr. Perfect wasn’t so perfect, but he won anyway.

Colts are riding a resurgent defense. Their coach Tony Dungy is a former Defensive Back. Defense is his specialty. And Peyton Manning is due. Last year, but for a similar bit of the kind of bad luck the Chargers had last week, the Colts would be defending Super Bowl Champs.

The book on Manning is clear. Blitz him. Don’t give him time to breath, much less throw.
That is why-now remember I said this- Belichick- the evil genius, has designed a defense for tomorrow THAT WILL NOT BLITZ MANNING. Watch. The beauty of Belichick is that his teams do exactly the last thing you expect them to do, and they do it well. The Patriots will rush 2 or 3, drop everyone else into coverage, and make Manning throw into coverage. Bet on it. Also, the book on the Colts was to run against them. So....the Patriots will throw...and throw...and throw. Belichick has designed an offense that will have the Patriots throwing out of running sets in obvious running situations. He is an eveil genuis and needs to be stopped.

And yet, we can’t bring ourselves to pick the Pats. The Colts are giving 3. I think the Colts will win. They have the Patriots kicker from all those Super Bowl: Vinateri. And that will be the difference. Colts by 3. So if you can’t find it at -2/1 you’re gonna have to tease the points. And everyone knows teasers are sucker bets.


SAINTS AT BEARS.

Longtime and careful readers also know my disdain for the Bears. Didn’t we stun the world earlier this years when we told you the awful Dolphins would beat the undefeated Bears. And yet, defense wins Championships. It’s going to be 20 degrees in Chi town tomorrow. The coldest weather the Saints have played in this year is 50.
I don’t like either of these two teams. Your Super Bowl winner is playing in the other game.

The Bears are -6. Defense wins championships. The Saints have the better ground game; the Saints have the better QB; the Saints have better WR's; special teams is even with a slight edge to the Bears. Who will win? I have no idea. I can't figure this game out. The stats say take the cold weather home team, with a better defense, in a Championship game. The Stats say Da Bears...and yet how many home AFC cahmpionship games did the Steelers loose in the 90's and 2000's? 4.

Here’s what you do: lay 11-10, buy a two team teaser: each team gets 6 points. The Colts are teased to +3. and the Bears become even. That’s the play today. But just a coupla bucks...as anything can, and probably will happen.

See You at the Colts/ Bears Super Bowl.

PS: Don't forget to vote in the NEW Special Prosecutor Poll....only on the REGJB Blog.

TWO BLACK EYES

2 fer Friday

Two disturbing stories in the Herald on Friday.

First we learned that Art “You should tell a lie” Koch counseled his client to lie on the witness stand. There are so many problems with what Koch is alleged to have done, we don’t know where to begin.

1) Koch abandoned his responsibilities as an officer of the court. Too often we as defense attorneys act as if the only person required to act in a responsible manner is the prosecutor. Having a client’s life in one’s hands is an awesome responsibility. Yet Mr. Koch denigrated the very court system that gives attorneys like Koch the power to protect and defend his client.

By telling his client to lie, Mr. Koch spit on the Constitution.

2) Koch’s actions damaged everyone associated with the criminal justice system.
We cannot forget, but nor can we fathom, the pain of the parents of Jimmy Ryce. Their pain was not a reason for Mr. Koch or any defense attorney not to try their level best. No matter how heinous the allegation, everyone is entitled to the very best defense possible. But, Mr. Koch has done the equivalent of rubbing Jimmy Ryce’s death in his parent’s face. Again.

Koch's actions, which reach the heights of irresponsibility, create the very real possibility Chavez may have a second trial, requiring Ryce's parents to live through the horror all over again. Who could blame these people if they lost all hope and respect for our court system and the lawyers who work in it?

3) If Koch was physically or mentally unable to effectively represent his client, he owed it to everyone to withdraw from representation in the case. Indeed, the strange events and allegations surrounding his representation should have led him to immediately inform the court and request a special assistant public defender be appointed from the private bar.

Any way you look at this, Mr. Koch has taken his entire career and ruined his name, tarnished the court system in Miami, and open new wounds in people who have suffered more than anyone should ever have to suffer.

Jimmy Ryce was a little boy who was senselessly murdered. His life should stand for something other than the unmitigated failure of a justice system and the lawyers who work in it.

This is a dark day for all of us.



The Herald also reported on Friday about the court records scandal.

With the Florida Supreme Court about to hold oral arguments on the practice of altering state court criminal records, the Florida Public Defenders Association has called for the appointment of a special prosecutor.

The Dade County State Attorneys Office responded thusly:
''Absurdity doesn't merit comment.''

Altering court records is a crime. If prosecutors and Judges did this, they may have committed a crime, their good intentions to serve justice not withstanding:
“the road to hell is paved with good intentions.”

To restore the integrity of the justice system, a Special Prosecutor is just what this mess needs.

The hubris of the State Attorneys Office we can do without.

What in the name of Abu Gariff is going on at the SAO and PD's office? These two Miami institutions, which traditionally produce some of the finest lawyers in Miami, if not Florida and beyond, are both sporting serious black eyes.

The phrase "Inmates running the asylum" comes to mind.

Bennett Brummer owes an explanation as to how he could allow an attorney who was not physically and mentally up to the task, to take on the defense of the most serious case his office was handling. He also must explain the training and oversight procedures at an office which we find out had a senior trial attorney telling his client to lie on the stand.

Kathy “Fernandle” needs to put a cork in her mouth piece. The seriousness of changing court records needs to be an investigated. One hopes that that the arrogance of the State Attorneys Office does not come back to bite them in their briefs.

We can’t help but think that what both of these offices need is a good shake up.

Starting at the top.

See You In Court, not flipping clients and changing court records.


PS. Thank You El Capitan for writing about a subject that has been on our minds, and needs to be discussed. We need to keep the pressure on until each and every detainee has counsel. The John Adam example was perfect.

GITMO & DUE PROCESS

THE CAPTAIN REPORTS:

Last week, in a radio interview, Charles "Cully" Stimson, deputy assistant secretary of defense for detainee affairs, told a radio audience that, 'the major law firms that are representing detainees at Guantanamo Bay were un-American'. He went on to suggest that corporate CEOs should fire the law firms. Stimson then read, to the listening audience, the names of the law firms that were representing these detainees, pro bono.

The New York Times, ran an editorial soon thereafter and stated that "it does not seem to matter to Mr. Stimson, who is a lawyer, that a great many of those detained did not deserve imprisonment, let alone the indefinite detention to which they are subjected as illegal enemy combatants". Stimson simply forgets about the fundamental American right that everyone should have legal counsel, even the most heinous villain.

Stimson also needs a refresher course on historical legal cases. The US Constitution does not limit the right to due process of law only to American citizens. Two great precedents include the case involving the Boston Massacre in 1770 and the slave rebellion case involving the Amistad. Interestingly enough, the lawyers for the defendants in each of those cases were US Presidents.

In 1770, John Adams represented the "odious" Redcoats charged with firing into a mob of Colonials, killing five people. Another famous patriot, Paul Revere, helped to supply the evidence. The rancor and clamor for the hasty conviction and execution of the British soldiers were deafening. It is incredibly difficult to imagine the challenges that Adams faced in his quest to win a verdict of acquittal, which he did achieve for six soldiers.

In 1839, John Quincy Adams championed another unpopular cause, representing an African named Cinque who led a rebellion of captives aboard a slave ship, the Amistad. Cinque and his followers were charged with murder and piracy. In the end, John Quincy Adams won their release after argument before the U.S. Supreme Court.

The point here is that even non-citizens -- at that time slaves deemed by many Americans as sub-human cargo -- were given due process of law and the right to legal counsel. Mr. Stimson, on the other hand, argues that corporate America should fire law firms whose lawyers have represented the Guantanamo detainees because they "are representing the very terrorists who hit their bottom line in 2001."

On Wednesday, Florida Bar President Hank Coxe sent a letter to President Bush asking for his immediate repudiation of the statements made by Stimson. Coxe called Stimson's comments “abhorrent to the highest ideals of this nation’s legal profession and an affront to the lawyers who provide legal services to the needy and oppressed throughout Florida and America.” Coxe went on to say that, “It is clear that those lawyers and law firms representing the detainees should be applauded, not attacked, criticized or associated by innuendo with wrongdoing. The lawyers who have undertaken representation of detainees, no matter what their personal beliefs, are doing precisely what this profession and a civilized society demand – to suggest otherwise is dangerous and offensive to our Bill of Rights.” Coxe concluded his letter by stating that, “Mr. Stimson has demonstrated ignorance of the basic precepts of due process and the right to counsel."

We, the criminal defense lawyers, who labor in our own little REGJB, are sometimes criticized for representing the people that we take on as clients. We ARE "Liberty's Last Champion" and it's high time that the rest of society, including the deputy assistant secretary of defense, begins to remember that!

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

William "Bill" Ferguson

UPDATED with funeral information.

Attorney William "Bill" Ferguson passed away last week after a car accident.

A reader was kind enough to write this about him:

William "Bill" Ferguson was a lawyer and businessman with deep roots in the Opa-Locka area.Besides having a law practice he also owned a beauty salon and other businesses in the neighborhood in which he lived.

Bill helped out young attorneys when they were starting their careers by lending an ear and even by employing some. Bill always had a smile on his face and was a pleasure to see in the Justice building.

Of course he was a role model for many African-Americans. A black man with his own businesses and law practice in the community. But he was also a role model for those who wish to pursue a career inl aw later in life. (I believe he went to law school later than most ASA's at least)

Bottom line is Bill deserves some acknowledgment on this blog.

For anyone who wants to pay respects to the family of Bill Ferguson:

A viewing will be held on Thursday, January 18, 2007 from 3:00 pm to 8:00 pm, at Mt. Zion Baptist Church, 901 NW 3 Avenue, Overtown.

Services will be held at 11:00 am on Friday, January 19, 2006 at the same location. At the conclusion of the burial (approximately 2 - 2:30 pm),

a repass will be held at the New Birth Baptist Cathedral in the Fellowship Hall, 2300 NW 135 Street, Opa Locka, FL

FAVOURITE BOOKS/FAVOURITE AUTHORS

Rumpole's favourite authors, in no particular order:

Ayn Rand; John Steinbeck; Stephen King; William Manchester; John Irving; E.M. Forester; C.S. Forester (Horatio Hornblower novels) ; Robert Caro; Gabriel García Márquez; Tom Wolfe; William Shakespeare; Henry David Thoreau.

Rumpole's Favourite Books, in no particular order:

To Kill a Mockingbird; Grapes of Wrath; The Fountainhead;
A World Lit Only By Fire; 1984; Slaughterhouse 5; Farenheit 451;
Widow for a Year; Of Mice and Men; Catcher in the Rye;
Old Man and the Sea (and its the only Heningway book I can tolerate); Dune; Travels With Charley; Crime and Punishment; Lord Of The Flies;
A Passage to India; The Right Stuff; Romeo and Juliet; Henry VIII; Merchant of Venice; Don Quixote;

I'm sure I've missed a bunch- this is just off the top of my head.

JA POLITICS

A post in the Comments section yesterday states that the Florida Supreme Court has opined that the Code Of Judicial Conduct (article One, section One: Never reach for the cheque). does NOT apply to Judicial Assistants. Recall the Judge Hernandez controversy with his JA running campaigns against other Judges. Seems to us that even if the Code Of Conduct does not apply, Judges might not want their JA running campaigns against the Administrative Judge who is their boss.


NORTH OF THE BORDER REPORT

Speaking of Judges, whispers North of the Border about a Circuit Court Judge who took a defendant into custody for missing court . However, before the case was called the bailiff had the client and the PD step outside to discuss the case. When the PD came back into the courtroom and tried to explain, the Judge, clearly mistaking the PD for a lawyer from Dade, would not listen to the explanation.

Broward PD's talking about a JQC complaint. Anybody have more info?

See You In Court: we're the one's reading Farenheit 451

MLK

I have a dream that my four little children

will one day live in a nation

where they will not be judged by the color of their skin

but by the content of their character.

NFL PLAYOFF WEEKEND

Saturday sees the Colts at the Ravens and the Eagles at the Saints.

Colts are +3.5 on the road at Baltimore. Important to note -Colts, who finished the season at 13-4 were 4-4 on the road, while the Ravens were 7-1 at home.
This is THE challenge for the Ravens. Win this, and it’s two easy games to a super victory in Miami.

Colts must remember their flat playoff performance last year as the big home favorite over the Steelers. Manning has a lot to prove, but with a worse defense behind him this year . Ravens play the best 4-3 cover 2 in the league, and have a story book ending in veteran McNair returning to the super bowl where his Titans lost on the last play when they came up a yard and half short of TD against the Rams.

This is a tough game and I would stay away – too many variables to get a good fix on the game- but if you must have action, the Ravens are the play. While the Ravens D gives up 12 points a game versus the Colts D that gives up 21 a game, the Ravens surprising offense scores 22 points a game while the Colts put up 26 a game. On paper and at home, the Ravens are the call.


The Eagles are getting 5 points at New Orleans. The over under is 48. I like the under. Saints are a surprisingly poor 4-4 at home and 6-2 on the road. Both teams averaged about 25 points a game and both defenses gave up about 20 points a game. Figure the Eagles to try and slow things down and the under looks nice.

New Orleans- I don’t know. Something doesn’t seem right about them.

Brees had a great year. They have Deuce and Reggie….and yet I don’t love their receivers and Reggie is a better receiver than back at this point. If he breaks a punt return loose for 7 then the Eagles are in trouble. But I don’t think the Jeff Garcia train 's last stop is the Big Easy. Eagles. Under.



Sunday has Seattle at Chi town and the Patriots at the Chargers.

Easy game is Pats at Chargers. Defense and running games win championships. San Diego has both. If San Diego is up early, this will be over quick. Pats average 25 on offense and 15 on defense-differential of 10; while Chargers average 31 on offense and 19 on defense- a differential of 12. The yardage stats on defense are about equal for both teams, but SD has a superior ability to ruh the QB- just what a team needs in January to beat the evil genuis and his QB. The Pats offense and defense is being held together by chewing gum and Belichick. Tom Brady can only do so much, and he can be rattled if you put some helmets on him, which the Chargers blitzing D can do. Tough to bet against the evil genius in a playoff game, plus Rivers is for all intents and purposes a rookie QB starting a playoff game, but this is not the Patriots year. Give the points to the Pats. SD covers.

Seahawks go to Chicago. Seahawks should have a chip on their shoulder. Like the Colts, they lost a big game last year to the Steelers that they should have won. The hawks were flat in the super bowl and all they needed to be was average to win the thing. Da Bears have a terrific D, and a suspect running game and a QB who has more ups and downs than a porn star doing reverse cowboy. Seahawks just barely beat Cowboys, but sometimes all a super bowl team needs is a little luck to go a long way.

Seahawks D –on average – gave up 21 points a game, while the offense scored 20 points a game. A -1 will not get you far in life. And yet….Hawks have the better coach…Hawks have the more experienced QB….Hawks have a league MVP carrying the rock. Bears have a better defense, and doesn’t D win championships? Yes, but not today. RUMPOLE UPSET SPECIAL. TAKE THE 9.5 POINTS IF YOU THINK SEATTLE WILL KEEP IT CLOSE, OR TAKE THE MONEY LINE IF YOU LIKE THE UPSET.

PS. Seattle does have Offensive line problems which cuts down on their ability to run, so don't bet the mortgage, but look for the upset.

"CODE BLUE" - NEW JUDGES BACK IN TOWN

THE CAPTAIN REPORTS:

As many of you know, in November, we elected several new judges to the County and Circuit Court bench. New faces you may see hiding behind those black (and sometimes) blue robes include: Judges Patricia Marino-Pedraza, Robin Faber, Victoria del Pino, Gloria Gonzalez-Meyer, Don Cohn, Jose Fernandez, Valerie Manno Schurr, Antonio Marin and Marisa Tinkler Mendez.

All this week, they, along with 110 other newly elected and appointed judges, went to Orlando for Florida's Judicial College. The faculty of sitting and retired judges included Judges Stanford Blake, Kevin Emas and Sam Slom, among others from Miami-Dade County. During the week of schooling, the new judges were reminded of others who donned the robes who got caught in compromising situations, such as DUI arrests, romantic relationships, pornographic emails, and the recent removal of Judge Sloop from the bench for ordering 11 people jailed for mistakenly going to the wrong courtroom; (they had been directed by court personnel to the wrong courtroom).

Also, during the week, each new judge presided over a mock trial where a host of scenarios was thrown at them to see how they would rule and react. In one mock trial, presided over by one of the new female judges from Miami, (I'll let you guess which one), the case was about a lying, cheating husband who had been stabbed by his wife. During the trial, the attorneys asked to go sidebar, and while they were there, the defendant grabbed the knife and snuck it back to the defense table before the judge noticed. They also threw a few more curve balls at her honor, including a sleeping juror, a gum chewing defendant and a name calling lawyer, not to mention the knife incident.

After the mock trial was over, one of the teachers reminded the new jurist that she must make herself aware of everything that happens in the courtroom, not just the legal arguments.

The BLOG looks forward to critiquing the new judges as they begin presiding over calendars, hearings and trials here in Miami and hopes that the judges remember that most of the attorneys practicing in the REGJB are hard working, dedicated barristers just trying to do their best for their clients while at the same time attempting to manage a law practice and keep their heads above water.

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

BRUMMER BROUHAHA

UPDATE: NEW POLL. VOTE WHO YOU THINK IS LYING.


Former PD Art Koch says his boss Bennett Brummer told him to back off in the defense of Chavez who was accused and later convicted of a despicable murder.

PDs' Edith Georgi and Stephen Harper say Bennett Brummer did no such thing

Bennett Brummer says he did no such thing.

One or more highly respected and long time attorney(s) is/are not telling the
truth.

Why?

From Ms. Nesmith's column this morning in the Herald, comes this excerpt:

Assistant Public Defender Edith Georgi also denied that she and fellow attorney Stephen Harper tried to get Chavez to make up a story about a horrible childhood -- including being forced into prostitution -- so he would have some sort of argument against the death penalty, as Koch claimed Tuesday.

Koch didn't raise any of the allegations until after he was disciplined in 2003 for being disrespectful to staff members. After the hearing, Georgi said she traced his allegations to that disciplinary action. ''I was the first person in the office to discipline Art Koch, so there's very bad blood between him and me,'' she said.

Something is rotten in Denmark.

See You In Court.

PS: Can anyone tell me what Code Brown is as it relates to the REGJB? I know, but I wager most people don't, and that is wrong.

WHAT'S A PD WORTH?

From the pages of the NY Times opinion section on Monday January 8, 2007 ,
comes this startling analysis from Judge Morris Hoffman of the criminal bench in Denver, Colorado:

a PD is not as econometricly effective as a private attorney.
Put simply, a defendant in Denver gets a less severe sentence when he/she hires a private lawyer.

Before the emails in capital letters star flooding in , lets look at the study in depth:

Judge Morris- a criminal court judge, writes that he started with a strong bias in favor of the efficacy of public defenders. Morris, along with two economists from Emory University, reviewed all 5,224 felony criminal cases filed in Denver in 2002.

From the article:

Most other studies measure lawyer effectiveness through indicators like acquittal rates, but we used the one thing criminal defendants care about most: the amount of jail or prison time they receive. Thus, acquittals counted as zero. Probationary sentences likewise counted as zero, unless the probation was combined with some jail time.

We counted halfway-house sentences as 120 days, which is typical for Denver defendants. We counted the initial length of a prison sentence without decreasing it for early release or increasing it for parole violations. Life sentences we arbitrarily counted as 110 years.

My economist friends were able to use regression analyses to control for other variables (such as whether a case was plea bargained or went to trial), to minimize the chance that the differences we found were caused by factors other than effectiveness. They also used regressions with different combinations of variables, to ensure that our results were not sensitive to a particular variable.

The results were surprising. The average sentence for clients of public defenders was almost three years longer than the average for clients of private lawyers.
But our most notable finding was hidden in one of the variables we had controlled — the seriousness of the case. We had assumed that public defenders on average handled more serious cases than private lawyers, if for no other reason than that such cases carry higher bonds, and defendants who can’t make those bonds are often rendered indigent by their pretrial incarceration. The length of their clients’ sentences would of course be distorted by the fact that they handle more serious cases with longer potential sentences.

But when we removed the control for the seriousness of the crime, public defenders performed relatively worse, not better (five years more incarceration versus three years more).

The study also recognized that indigency is not a binary system: meaning it is not correct to say someone is either indigent or not indigent. The study recognized that defendants make rational economic choices when deciding to accept a designation of indigency- and a public defender, or to raise funds and hire a private attorney.

Again from the article:

Imagine a guilty, marginally indigent defendant facing a relatively minor felony (for which he will most likely get probation). Now add to the mix the fact that his crime was captured on videotape, meaning he has a small chance of avoiding conviction. It is unlikely such a defendant would deplete his and his family’s and friends’ resources to hire a private lawyer when he could get a free public defender to achieve the same result.
At the other end of the spectrum, imagine a marginally indigent defendant charged with first degree murder, and imagine that he is innocent. Wouldn’t that defendant do everything in his power to marshal the resources to hire a private lawyer, if he believed, rightly or wrongly, that the private lawyer were more likely to achieve an acquittal?
In other words, marginally indigent defendants who choose public defenders tend to be guilty. And of course if that’s true, it’s not at all surprising that public defenders would achieve less favorable outcomes.

Rumpole theorizes that there are more variables then the study takes into account, but the study is a good start. The variables that would tend to support the findings of the study are that the Public Defenders tend to be more inexperienced and have more cases than a Private Attorney, a combination that would support the findings.

But on the other hand, could there be a systemic bias against an indigent defendant? Sensing a weakness, do prosecutors unintentionally make stiffer plea offers to PD’s? Are fees for the “unwinable” cases so exorbitant that those cases tend to stay with the PD’s? The author’s statement that indigent defendants who choose to stay with the PD tend to be guilty creates a bias in the analysis. Therefore, this bias needs to be accounted for before a true econometric statement can be made that PD’s are less effective than Private attorneys.

OK-have at it.

GATOR NATION

From a Canes Fan:

WELL DONE.

TAKE A BOW.

AHEM....check out the post on 1/5/07. Who told you to take a money line anf forgo the points because the Gators would win outright? Ol' Rumpole, that's who!

WITWIR???

WHERE IN THE WORLD IS RUMPOLE??

GET SOME FLOW

The Rumpole way.....

NFL WILD CARD WEEKEND

Cowpokes travel to Seattle to put an end to their revolting season. Take the Hawks, give the 3, get some Starbucks, and watch your winnings grow.

J..E…T…S.. travel to NE to play the Patriots. Master Belichick versus student Mangini. Like the boys in Green to keep it close. Pats could win the super bowl, or could choke. Bottom line is that the Pats miss those WR’s more than they would admit. J..E…T…S…


Giants take the bus to Philly. Surprising Eagles riding Jeff Garcia, who has been there and done that. Disappointing Giants watching Coughlin coach his last game as a Giant. Eli can’t do it alone. Giants always dangerous with Tiki Barber, but Eagles match up well. The spread is 7. Try and give 6.5 where you can find it. That might be the difference here.
Go to Pats, order a cheesteak "wit" (wit gets ya mushrooms, onions, and cheese wiz), and an Eagles win.

KC at INDY. KC a one trick pony. But what a pony in LJ. Indy has suspect run defense. Tony Dungy is an old Steeler DB. Would figure he would know a thing or two about defense. Indy is giving 6.5. Give the points.
Over/under is 51. Under under under.


SNEAK MONDAY NIGHT BCS PREVIEW:

Florida Gators could well win this thing. Take the 7.5 now. Watch which way the line moves. I think it could move down to 6. The middle is not the play here- the Gator money line is.
Remember, Rumpole told you first about this little upset in the making.

Early predication: Ravens beat Saints in Miami Super Bowl.

WORD OF THE DAY

RUMPOLE’S WORD OF THE DAY


Longtime and careful readers of this blog know that we have in the past made use of the word Schadenfreude.

Perhaps now is a good time to review that word and its meaning:

Schadenfreude: To take delight in the misfortunes of others.

It derives from the German Schaden (damage, harm) and Freude (joy);

There is no equivalent word in the english language.


Auf Wiedersehen. Bei Gericht bis.

(Goodbye. See You in Court.)

A BIT OF PORTIA

Longtime and careful readers of this blog remember that from time to time, when the occasion warrants, we turn to our favourite bard for inspiration, or to help explain a point.

This is one of our favourite passages, by Portia, in the Merchant of Venice.
We have had the rare occasion at times to quote liberally from it during a sentencing.

Based on the discussion in the comments section last night and the general events since the first of the year, perhaps we should all take a moment to reflect on the words.

The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest:
it becomes The throned monarch better than his crown;
….

Therefore, Jew,
Though justice be thy plea,
consider this,
That, in the course of justice, none of us Should see salvation:
we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy.


Indeed, a reading of the Merchant of Venice on a quiet night
is good for the soul of all of us.

Or, as is apparently the popular opinion of those who take the time to leave thoughtful comments, you can just call us a jerk and move on.
We do note that people on both sides of this issue did not like out post yesterday,
so maybe we are doing something right.

See You In Court. We’re the one with Shakespeare on our IPOD.

PROSECUTOR ARRESTED

It is with sadness that we confirm that ASA George Cholakis was arrested
( F07-0001 ) for DUI serious bodily injury on New Year's Eve. The Herald web site has a copy of the two page arrest report.

Mr. Cholakis is alleged to have driven a motor vehicle that struck and injured
two individuals who were on a scooter.

Mr. Cholakis is alleged have refused roadside field sobriety tests and a request that he provide breath and blood samples.

There are some posts in the comments section that gloat over this arrest.
Those feelings are misplaced.

Lawyers like Mr. Cholakis who spend a good deal of their career as prosecutors are dedicated public servants who have chosen a career without regard to financial remuneration. We may not appreciate the hard line someone like Mr. Cholakis may have taken in the past with a client we have represented, but as citizens of this county, we appreciate his dedication to making our city safer.

Real professionals can separate their personal and professional feelings.

We are however troubled by the allegation that Mr. Cholakis refused roadside sobriety exercises and that he refused to provide a breath test and a blood test.

The quick advice given out by DUI lawyers at cocktail parties is to refuse testing if you believe you are impaired. However, the real issue here, at least as it applies to the breath and blood tests, is that every citizen who accepts the privilege to drive in Florida gives implied consent to have their breath, blood, or urine tested if an officer believes they are impaired.

While we fully support the presumption that Mr. Cholakis is innocent until proven otherwise, we remain troubled by his failure, both as a prosecutor, a lawyer who is an officer of the court, and a citizen of the State Of Florida, to live up to his end of this agreement.

Of course, many people are alleged to have refused to provide a breath sample, only to have the truth reveal otherwise. We hope this is the case here. Certainly, not everything (many times hardly anything) an officer writes in an arrest report has anything to do with the true facts of the case.

However, regardless of how the case turns out-even if Mr. Cholakis is acquitted or even if a prosecutor declines to file charges based on the evidence- we would be troubled if it turns out he did refuse a lawful request to test his breath or blood.


Not a great way to start off the new year.

See You In Court.

RESOLUTIONS

It’s a time for renewal. For getting rid of old habits, and making changes.

Herewith, Rumpole makes these solemn New Year’s Resolutions.


10. Not to drink and blog (so much).

9. Write more.

8. Attend more Pilates classes.

7. Be nicer to State Court Prosecutors. The Feds can go pound salt.

6. Be meaner to the Feds (see #7-nothing like getting a head start on those resolutions.)

5. Save More. Spend less.

4. Get that 60 inch Plamsa TV.

3. Drink less and read more case law. (Who are we kidding?)

2. Try more cases.

[gosh this is hard].

1. Be nicer to Judges.

See you in Court in 2007.