REAPING WHAT WE SEW AND FAINTING GOATS

UPDATE!: A family member of the victim in the "Moldof" case writes us an email. See below for the full email.

A longtime and careful reader of the blog was kind enough to alert us to this article from Manatee County about 11 suspected gang members who were arrested after a five month investigation. One problem: the Court is having trouble rounding up eleven lawyers stupid enough to take the case for the new flat fee of $2,000.00.

Go here to read about WE’RE NOT GONNA TAKE IT legal style.

Oh Well.

Moldof Morass.

Here is the Herald article
reporting on the conclusion of the investigation of Broward lawyer Hilliard Moldof who was accused in 2003 of tampering with a witness in a murder prosecution by paying the witness $100.00 . The article reports that the Dade SAO, who was appointed to investigate the case reached a “settlement” with Mr. Moldof wherein Moldof agreed to a statement of facts in which he acknowledged that his actions could be the basis for charging him with a felony. The case was then referred to the Bar and the Dade SAO took no further action, deeming their settlement a type of deferred prosecution.

Rundle's office has said Moldof wasn't charged because his offense was nonviolent, and he had a clean criminal history. Prosecutors told Bar officials they gave Moldof ``a break.''

The hitch is that the Dade SAO apparently believed Moldof would get a six month suspension, and instead the Bar has ordered an admonishment. The Dade SAO is not happy.

The Dade SAO has come under their fair share of criticism on these pages but not today.

Like it or not, what the Dade SAO did was exercise prosecutorial discretion. They decided not to proceed with a prosecution that they technically could have proceeded with because they believed that it was the right thing to do. It did not work out as they planned in this circumstance, but that should not dissuade them from proceeding in this manner in the future. We need more of this type of thinking, and less of the type of concrete thought process that we see too often in our courts these days.

UPDATE: After the post ran this morning, we received this email, which we print in full with full permission of the author:

I agree with 90 percent of your post, and I think you'll agree with my 10 percent after you read this.

Miami SAO had originally written, in a July 2005, document, that it was going to deferred prosecution, but reserved the right to turn around and prosecute if the Florida Bar didn't come through with at least a six-month suspension. The final agreement included no such provision; it was taken out. (Which side do you think proposed that?)

Rundle gave up her "hammer" in the case -- that Moldof get at least six months -- and once she gave that crack to Moldof's lawyers, they did a very good job of running with it. Give them credit.

It is my opinion that Rundle erred by doing that. Agree or disagree?

Also, FYI, on of Oct. 15, 2004, Michael Von Zamft wrote a letter to Michael Dutko, Moldof's attorney, saying the case was going to the Broward Grand Jury. Sometime afterward, when Moldof hired Arturo Alvarez to represent him, Miami SAO came out with the deferred prosecution agreement.

Feel free to post any or all of this

Nick Sortal. Brother of victim

ROBERTS: THE FAINTING CJ


We are happy to learn that the CJ is feeling better. Doctors are a bit puzzled as to what is causing this. We modestly propose our own diagnosis: The Fainting Judge syndrome.

Here is the article on the famous
FAINTING GOATS”
of Tennessee:

Fainting goats have bulgy eyes which are very unusual and which distinguish them from other breeds. They also have very long ears that stand out to the side of their head. They are a very calm animal and make excellent pets.They are a herding animal, and should therefore be kept with at least two or three of their own kind.


The Fainting Judges of DC:

“Fainting Judges also have bulgy eyes which distinguish them from other Judges. They are usually very calm and make excellent advocates of the conservative legal agenda. They are excellent at herding other Judges into a 5-4 majority and therefore are usually found with at least 4 others of their own kind.




Goats of a feather can usually be found together.

See You in court, avoiding judges with bulging eyes.

CHIEF JUSTICE SUFFERS SEIZURE

BREAKING BLOG NEWS


CHIEF JUSTICE JOHN ROBERTS SUFFERS SEIZURE AT HOME.
CURRENTLY IN HOSPITAL.
DETAILS TO FOLLOW.

FBI RAIDS HOME OF ALASKA SENATOR TED STEVENS.

Details to follow.


UPDATE ON CJ ROBERT'S CONDITION (9:00 pm.)

This has apparently happened before with no lasting side effects.
The CJ is in a hospital, conscious and alert, and resting. There is apparently no explanation for this happening.

The CJ fell and hit his head. After regaining consciousness he asked for some opinions he wrote in the last term. "I wrote that???!!!!" The CJ is reported to have said before fainting again.

RUMPOLE TACKLES VIRGINITY

Judge John Schlessinger ruled on Friday that the confession of a fourteen year old boy is admissible and can be used at trial.

The Herald reported:

Hernandez's attorney, Richard Rosenbaum, had argued that his client's lengthy videotaped confession should be thrown out because Hernandez, then 14, was too severely mentally ill to make a rational decision about his right not to talk to police.

The teenager stands accused of stabbing and killing another boy at Southwood Middle School.

The circumstances of this confession and the outcome of this tragic case bear watching.


The Herald also reported HERE
the Death of attorney Steve Ellison. Before working for the Dade SAO and the Monroe SAO, Steve Ellison was a Metro Dade Officer and a homicide detective. Many attorneys in the REGJB knew Steve Ellison as either an outstanding detective or a fine attorney. We note his passing with sadness.


President Bush actually had a chance to run the country with VP Cheney out of action having his pacemaker tuned up. And yes, in order to have a pacemaker, you must have a heart.

Kudos to the career Justice Department lawyers speaking out against Attorney General “I can’t recall my first name at this time” Gonzales. The NY Times reported HERE
that
Daniel J. Metcalfe, a lawyer who began his government career in the Nixon administration and retired from the Justice Department last winter, said morale at the department was worse under Attorney General Gonzales than during Watergate.

And

John S. Koppel, who continues to work at the department as a civil appellate lawyer in Washington, wrote this month that he was “ashamed” of the department and that if Mr. Gonzales told the truth in recent Congressional testimony, “he has been derelict in the performance of his duties and is not up to the job.”


And finally, while she does not appear to be our long lost dear Portia of the blog, this cry for help arrived early Friday evening:

Rumpole,

In your last post, you said you were "feeling unfulfilled". Well cheer up! Here are my current stats: 30 years old, a virgin and I will have to spend my entire weekend working on a DUI Manslaughter.

A female defense attorney.

And eager to help, we replied:

5:44- my dear unfulfilled colleague. Unfortunately your condition cannot alleviate my condition, as the causes are vastly different. However, tis a noble cause you are engaged in. (Defense not virginity). I am qualified to give you advice on the former, not the latter. However, I wish you the best of luck in both.


Knowing the altruistic nature of our dear readers, we can’t help but think that help may be on the way for our new Portia.

See You In Court.

LIGHT MY FIRE

In the limp aftermath of the most notorious prosecution in Florida involving sexual organs since the Miami Dade SAO secured a conviction against Jim Morrison of the Doors, the Broward Masturbation case has left us feeling, well, unfulfilled.

The Defendant was convicted which is embarrassing as it is unfair. The Broward SAO and one particular female BSO Officer remain steadfast and unbowed in their attempt to rid the world of self gratification. They may as well use tweezers to clear Florida beaches of sand while they’re at it. Perhaps the Broward SAO’s lack of prosecutorial discretion, which those of us in the criminal defense community have known about for years, now on public…ahem.. display for all to see, may be the first chink in the armor of long time State Attorney Mike Satz.



Meanwhile, in Dade County, Corrections officials were shocked! Shocked ! to learn that the man accused of killing the bondsman trying to apprehend him, was left in a Van in sweltering heat for hours at TGK after returning from court. The Herald article is HERE


And finally, the Director of the FBI, Robert Mueller, gave testimony to the House Judiciary Committee, in which he, in effect, called the Attorney General of the United States a liar.

The Attorney General testified earlier in the week that when he was White House Counsel, he and his top assistant decided “on the spur of the moment” to race to the hospital bedside of then attorney General John Ashcroft to “bring him some flowers and candy, and if he felt up to it, have him renew our program allowing the government to spy on its citizens. But only if he was really feeling jolly.”

Muller has never adequately explained why he felt it necessary to order FBI agents to prevent Gonzalez and Bush henchman Andrew Card from removing deputy attorney General Comey, who was also present, from Ashcroft’s room.

“Gonzalez and Card love to sneak candy” said an unidentified White House spokesman. We believe Director Mueller was justifiably concerned that those two knuckleheads would chow down all of Ashcroft’s candy. You know how those guys get when their wives let them out at night.”


Somehow, we just don’t buy it.

The administration would be well advised to remember that it's members do not fair well when charged with perjury. There is a growing belief that the Attorney General may well have walked himself into a perjury trap before the Senate. With the federal guidelines being as unfair as they are for obstruction of justice, he apparently has little to worry about in terms of prison time.

Broward is concerned about the front side of what’s in a person’s pants, while the Attorney General of the United States acts like the backside.



See You In Court.

KEEP IT COMING LOVE

CROMARTIE, 4D05-1568 (Fla.App. 4 Dist. 2006)

STATE OF FLORIDA, Appellant, v. XAVIER CROMARTIE, Appellee.

No. 4D05-1568.

District Court of Appeal of Florida, Fourth District.

September 27, 2006.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, John Murphy III, Judge, L.T. Case No. 04-22513 MM10A.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant.

No appearance for appellee.

STONE, J.

Cromartie, a county jail inmate, was masturbating in a jail cell while looking at deputy Francine Smith. She observed him and ordered him to stop. Instead, he continued. The jail cell was in the jail infirmary and was open to view.

Cromartie was charged with violating section 800.03 Florida Statutes, covering exposure of sexual organs.[fn1]

The trial court granted a motion to dismiss, reasoning that a police officer cannot be an offended party as to the exposure of sexual organs and that a jail cell is not a public place, relying on State v. Silvers, 7 Fla. L. Weekly Supp. 592 (Fla. 17th Cir. July 31, 2000).

Section 800.03 Florida Statutes, reads:

800.03 Exposure of sexual organs — It is unlawful to expose or exhibit one's sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose. Violation of this section is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A mother's breastfeeding of her baby does not under any circumstance violate this section.

The question is whether Cromartie's exposure was "in public," "so near [the private premises of another] as to be seen from such private premises," or if he was "naked in public [in a] place provided or set apart for that purpose." We note that, by its plain wording, the statute does not require the state prove a party was offended. We further note that the offense is defined by whether the conduct occurs in public or private, and under what conditions. See State v. Kees, 919 So. 2d 504, 505 (Fla. 5th DCA 2005).

There are patently aspects of a jail cell that do not comport with a public place in the sense that it is not open to the public at large. However, we can discern no basis to ignore the fact that the cell in this case[fn2] is public in the aspect that an inmate has no control over persons being present at any given time. Cromartie's infirmary cell was open to view by any authorized employee, nursing staff, cleaning personnel, or visitors. Further, as soon as the deputy told him to stop, Cromartie was on notice that he was not alone. He, nevertheless, chose to continue his display, in violation of the statute.

We reverse the trial court's dismissal and remand for further proceedings.

STEVENSON, C.J. and POLEN, J., concur.

Not final until disposition of timely filed motion for rehearing.

[fn1] We note that Cromartie was also charged with violation of section 843.02 Florida Statutes, resisting officer without violence. This charge was not at issue in the instant appeal.

[fn2] We need not resolve whether this would apply to all jail cells.


Rumpole says, MEMO TO THE 4TH DCA RE: FN2: NOW YOU DO.

ONANISM

THIS IS WHAT THEY SPEND THEIR TIME ON NORTH OF THE BORDER

THE MIAMI HERALD:

Jury panel queried in masturbation trial
BY ROBERTO SANTIAGO


A Broward prisoner on trial on charges that he masturbated in his jail cell will face a jury of his peers.
During jury selection Wednesday in the case of inmate Terry Lee Alexander, all seven jurors admitted to attorneys that they have masturbated.

The awkward questioning was posed by defense attorney Kathleen McHugh, who faced 17 prospective jurors and asked point-blank who among them had never masturbated.
No hands went up.
Then, she went one-by-one, asking each prospective juror if he or she had ever masturbated.
All nine men said yes, two of the 10 women said no.

McHugh's line of questioning, which also included definitions of obscenity, vulgarity and indecent exposure, was a preview for a trial that will determine whether what Alexander was caught doing in his jail cell violated prison codes on vulgarity.

The 20-year-old was alone in his jail cell in November when a female deputy, watching him from a nearby control room, became offended when she saw him masturbating.
He is facing a misdemeanor indecent exposure charge and a maximum of one year in jail.


What the article doesn't say is that this female deputy has a history of filing criminal complaints against inmates who masturbate.

It is, believe it or not, against the rules of the Broward jail for an inmate to engage in onanism.

The real issue, and one that has been overlooked by all the media focusing on the antics of the Broward Judiciary, is that the Broward State Attorneys Office files this crap.

How many defense attorneys have been told by a Broward ASA that after the depos were taken that they believe the defendant is innocent but that their office has a policy of never dropping cases and making the jury acquit the defendant?

That is the real outrage that is going on North Of the Border. A prosecutors' office that has abandoned any semblance of discharging the duties of prosecutor. The Broward ASA's are for the most part merely robots that are wound up, pointed towards court, and told "try that case."

Stepford Prosecutors. A real menace to justice.

See You In Court in Dade, where as far as we know, none of the many people we know and work with on a daily basis who could testify as an expert in the Broward case, will be called as a witness.

TO HELL WITH IT ALL.

2ND DCA REVERSES TRAFFICKING CONVICTION AND 25 YEAR MINIMUM MANDATORY SENTENCE FOR FAILURE TO INSTRUCT JURY ON THE PRESCRIPTION DEFENSE.

O'HARA v. STATE, 2D05-5078 (Fla.App. 2 Dist. 7-18-2007)


This why prosecutors have a bad rap. They have only themselves to blame for publicly advocating absurd positions that could devastate a person’s life.

O’Hara was convicted for trafficking in vicodin by possessing 58 tablets of the pain killer. At his trial, he presented evidence that physicians had prescribed the medication for pain he suffered from a chronic inflammatory joint disease and from injuries he had sustained in an automobile accident. Two separate Florida Statues each provide that possessing a valid prescription is an exception to the prohibition of possessing the drug. (Sections 499.03(1) and 893.13(6). However, the trafficking statute 893.135 does not explicitly contain the “prescription defense” and the trial judge refused to give the jurors a defense requested instruction.



In granting a new trial, the 2nd DCA noted that The drug trafficking statute, section 893.135 contains no express language setting forth a prescription defense. However, its proscriptions against the sale, delivery, or possession of trafficking amounts of certain drugs are prefaced by the following qualification: "Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13:. . ." § 893.135(1)

The court called the prosecution's position on appeal "absurd":


The State's construction is no less unreasonable in the context of the case before us, involving the drug trafficking prosecution of a man who possessed hydrocodone that he obtained by prescription. At the time of his arrest, O'Hara had 58 Vicodin tablets in his possession, but under the State's theory he would have violated the trafficking law even if he had possessed far fewer. ... The dosage recommended by Vicodin's manufacturer is one or two tablets every four to six hours, not to exceed eight per day. If we were to accept the State's assertion that there is no prescription exception to the offense of drug trafficking by possession, then we would have to conclude that any person who leaves a pharmacy with only one day's worth of properly prescribed Vicodin in hand is guilty of drug trafficking and subject to at least a three-year minimum mandatory prison term and a fine of at least $50,000.



One of the doctors who appeared at O'Hara's trial testified that in the course of his practice he had written prescriptions for up to 60 Vicodin tablets. Under the trafficking statute, that many Vicodin tablets would be deemed to contain over 30 grams of hydrocodone. According to the State's reasoning in this case, any patient who had the doctor's prescription filled was subject to a twenty-five year minimum mandatory prison term and a mandatory fine of $500,000.


What bothers us is this: what kind of human being actively works to put a fellow (ill) human being in prison for filling a validly issued prescription for a needed medication? This is the type of “see no evil” bureaucratic robotic thought that one would expect to see in communist China.

25 years is more than a quarter of a person’s life! Just how did those prosecutors feel when they went home that night knowing they put a man in prison until 2030 for possessing drugs prescrbed by his doctor? How do these people sleep at night issuing this kind of devastating “justice’?

This kind of activity does not drive us to be a defense attorney. It drives us from the practice of law. Who would want to participate in a system of justice that produces these kinds of results, and engenders prosecutors to argue for absurd results on appeal?

It just makes us sick to think there are people like this with law degrees and entrusted by the State of Florida with enforcing our laws.

Some days, we just think “to hell with it all.”

DEBATING TOPICS

We watched the You-Tube debates last night and our lasting impression was not one we expected to have going in. Hands down, the candidate who appeared most presidential was….Senator Joe Biden. He deserves a second look.

Our announced favourite, former Senator John Edwards did well, as did the expected top stars, Obama and Clinton. We think that Obama followed his briefing books a little too closely. Just how many times was he going to say he was the most experienced and able candidate to be President? Ditto for Senator Clinton when she was lobbed the softball about following in Bill’s footsteps. You are proud of your husband’s achievements as President. We get it.

Memo to both Clinton and Obama: time to come up with some different answers. Keep playing not to lose, and your not going to win.

The Universal Health Care issue was not really addressed. All of the candidates have stories ( as do we) of Americans dying because they were refused medical treatment. We think Senator Christopher Dodd deserves points for bravery for responding "yes" to the question of whether he would extend coverage to illegal workers in the US.

The bottom line is that we will eventually, somehow, get out of Iraq. Once that is done, the next US President faces several challenges- keeping tabs on Al Queda and Hezbelloah so as to make sure they do not strike the US. Dealing with US energy consumption and Global Warming (China is building so many coal fired power plants as to keep West Virginia Coal Miners in business for the next 100 years). Universal Health Care. Throw in problems like crumbling infrastructure and the probable outbreak of some flu-like health crisis somewhere in the world in the next decade, and it has never been more clear that we need a new generation of intelligent and dedicated political leaders. And we need them now.


DEATH PENALTY
The Herald reports that THIS JUDGE found Florida’s current method of execution unconstitutional.
How about a .22 in the back of the head? It’s quick, cheap and efficient. If you’re going to support the state killing its citizens as retribution and punishment, why all the claptrap about it being humane? Just do it and admit the barbarity of it all and move on to the next problem.

NEW SENTENCING PHASE
Speaking of execution, Stephen Ault who raped and strangled two young girls, is back for a new sentencing hearing in Broward. His original sentence was over turned when the judge excused a juror during voire dire who had voiced “general objections to the death penalty.”
The Herald article IS HERE

If you’re ever going to challenge our position on the death penalty, Stephen Ault is the case to do it.


SHARPSTEIN UPSET
The Federal Blog and the DBR has coverage of Richard Sharpstein's fight against the Feds in a Health Care case. The lead FBI agent called his clients to tell them Sharpstein had a conflict on the case. If you know Sharpie, he is a bit miffed. Mr. Markus can also be counted on the cover the Noriega proceedings.


2 LIVE CREW REDUX
Finally, there is a post on the Broward Blog about Judge Grossman's ruling over a decade ago on 2 Live Crew. There is a lengthy response by local attorney Jack Thompson. if you know of Mr. Thompson, you know he never passes on the opportunity to expound on his views of pornography in our culture.

Perhaps this is a good topic for debate here. It is fair to say that we would head into such a discussion opposed to censorship. However, with the rise of deadly violence among our children, Mr. Thompson's views have an important place in the discussion.

Have at it. Presidential politics; the death penalty; free speech. Topics for debate for those of us not lucky enough to be camping in the Badlands this summer.


See you in court.

THE WAY THINGS USED TO BE....

There is a lot that went on this past weekend.


On Sunday the Herald and David Ovalle had a great article on
the way things used to be.

Ed O’Donnell Sr as the prosecutor. Mike Von Zamft as the defense attorney. The roaring seventies when the courthouse thumped to a disco beat, Gerstein was the prosecutor not the building, an evil serial killer named Robert Carr was on the loose, and Edna Buchanan of the Herald was writing all about it.

Those were amazing times. You new lawyers should ask some of the older lawyers what it was like. Miami was a much smaller, much more southern city. Anita Bryant was on the loose campaigning against Gay Rights, “English Only” was a hotly debated topic, and our courthouse was a small place indeed. There were certain Judges like Ed Cowart who had the shoulders of giants, upon which we now stand.


And Herald reporter David Ovalle again with this story
about Miami-Dade Sgt. Raymond Richard Lumarque who sits in a security cell at TGK accused of armed sexual battery against his ex-wife.


Then the Broward blog reports that attorney Steven Finta, previously in these pages for toting a gun into the Broward Courthouse because he had a client that was threatening him, was arrested again, this time for punching a deponent in the snoot during the depo. There is something to be said for doing something the rest of us only dream of.


It’s a long hot summer. Not quite the Bronx is Burning summer of 77, but the summer of 07 sure has had its surprises. Maybe the Bronx isn’t burning but that courthouse north of the border sure is smoldering.

See you in court.

IT'S THAT TIME OF YEAR

Long time and careful readers of the blog will remember our amazing football prognostications last year, when we went a documented 167-4.

Perhaps the glow of our success last year has altered our memory of the exact record, but all kidding aside we were picking games at about a 75-80% success rate, including the documented astounding pick, on record, that the lowly Dolphins would outright beat the mighty Bears.

Training camps open next week, and we thought we’d look at the divisions and give a preliminary prediction on the division winners. We reserve the right to change our picks based on injuries over the summer, and will make our final picks just before the season begins.

Remember…ahem…this is for fun only.

AFC EAST
NE Patriots
NY Jets
Miami Dolphins
Buffalo losers.

AFC SOUTH (why aren’t the Fins in the south?)
Colts
Texans
Titans
Jaguars
(Second year jinx strikes Vince Young of the Titans)

AFC WEST
San Diego
Denver
KC
Raiders

AFC NORTH
Bengals
Steelers
Ravens
Browns

NFC EAST
Giants
Eagles
Cowboys
Redskins

NFC SOUTH
Saints
Tampa Bay
Carolina
Falcons ( minus Vick…ruff ruff)

NFC NORTH
Vikings
Bears
Packers
Lions

NFC WEST
49’ers
Cardinals
Seahawks
Rams


Couple of surprises here. Starting with the NFC West, 49’ers have finally re-tooled and this is their break out year. Cardinals got the right new Head coach in Ken Whisenhunt for QB Matt Leinart and will make some noise, although their running game and OL line need to step it up. Texans will make some noise and Falcons are regretting trading Matt Schaub the best backup QB in the league last year to the Texans. Bengals have just too much talent to not win the division and the Steelers are only one year removed from their super bowl win. Ravens have just gotten too old to compete.

Our home town Fins just don’t have it. They may be a solid 8-8 but that’s all we see here. Ted Ginn, Jr., may just turn out to be the steal of the draft, but we think he will need a year or more to mature. The final analysis of Ginn as the number one pick of the Fins will always be linked to two factors: How will second round pick QB John Beck perform? And will Beck outperform the QB they passed on- Notre Dame star and Browns QB Brady Quinn. Ginn could make the pro bowl for the next ten years, but if Brady Quinn becomes a franchise QB, the Fin Fans will never let Fins head coach Cam Cameron forget it.


COLTS and CHARGERS are the class of the AFC with the Bengals and Patriots right behind. Yes, that’s right- despite all the high priced free agents the Pats have picked up, spending money is not always the way to win. Just ask Redskins fans. We think there will be some chemistry missing in New England, and there is nothing current NFL genius Bill Belichick (who is going through a messy personal situation of his own by being named as the third man in a messy divorce) will be able to do about it. The Patriots will be strong, but Tony Dungy is too good a coach, and Peyton Manning is the best player in the league. The champs will find a way to at least make it back to the big game.

NFC just doesn’t look as strong. The SAINTS look to be the class of the league (has that line ever been written before?) and we think the 49’ers will be close behind. The Bears will not repeat the great season they had last year. We are not sold at all on Grossman as a QB who can make it in this league and their defense is in turmoil.


So there it is. Our preliminary view of the NFL. Ride the 49’ers hard early before the line catches up with how good they will be. Over will be a big play in Patriot games, as they don’t have the defense but definitely have the fire power. Ditto for the Bengals. The Dolphins? Well, if you want to put your local bookmaker’s daughter through college and help out with those new boat payments, just keep picking the Fins. He will thank you at the end of the year.


See You tomorrow.

PRESIDENT CHENEY

ITEM: The President will invoke the 25th amendment today and hand off the powers of the Presidency to VP Cheney as the President under goes a colonoscopy today.

As we said in the comment section yesterday, to borrow a line from Woody Allen:

The doctor will do to Bush what he has been doing to the country for the last six years.

VP Cheney's staff has said the VP will be spending a quiet weekend at his Maryland Shores home. They have released the VP's schedule for Saturday.

10:00 am: Become acting president.

10:30 am: Orders marshall law. Suspend Habeus Corpus, sign arrest warrant for Speaker Nancy Pelosi.

11:00 am. Interview with Rush Limbaugh,

11:30 am. Orders the summary execution of all detainees at Guantanamo Bay.

12:00 pm. Light lunch with Donald Rumsfeld.

1:00 pm. Address to the Nation: "We face dangerous times which require strong leadership."

Make the following announcements: Presidential elections suspended until Bin Laden converts to Judaism; accepts "resignations" of Justices Stevens and Ginsberg; accepts Haliburton's "generous offer" to buy the Gulf of Mexico for 100 million dollars and some "really neat" beads;

2:00 pm. Orders summary and immediate execution of all inmates on death row.

3:00 pm. Orders bombing of Iran.

4:00 pm. Signs arrest warrant for Collin Powell.

5:00 pm. Cocktails with Scooter Libby.

6:00 pm. Phone call to President Bush. "All is well, nothing much to report."

THE EMPIRE STRIKES BACK

(a Sith)



You didn’t think the high lord SITH


Acting Chief Judge “Darth” Grossman was going to just sit back and take that devastating memo from Judge Elijah “Luke” Williams, did you?

Neither did we.

Here is Judge Grossman’s reply memo, replete with reasonable sounding explanations for his actions.

MEMO

Apparently the Broward Diversity Board met last evening with Darth Grossman acting as “Charles in Charge.” (We’ve got to stop mixing our popular culture metaphors. Its just that so many apply here.)

First off, Darth Grossman decided that since maybe a little more diversity training for the Judges North of the Border wouldn’t be so bad after all, especially since the cost will be minimal. We have always said it doesn’t cost a plug nickel to act ethically.

Then Darth Grossman turned his attention to Judge Williams.

He wrote a memo explaining the innocent nature of his meddling in the Diversity Board.

But then, being a High Lord Dark Sith, he could just not resist taking one more shot at the man he embarrassed:

The memo concludes with this little dig:

“I hope that you would reconsider your resignation as you did at Judge Ross’ request the last time you resigned as Chair some months ago.

Sincerely,

Darth Grossman
Acting Chief Judge until they pry that title and gavel from my cold hands.”


Rumpole says: At times we often feel a need to resort to technical legal language to adequately display out feelings in a professional manner. This is one of those times:

What a jerk!

Does that really sound like the words of a wise, honest, and compassionate jurist?

Just what did Darth Grossman think he was accomplishing with that last line? First he usurps the authority of Judge Williams. Then he unilaterally decides not to allow the Diversity Board to implement the judicial training and complaint process that Judge Williams and the Board members were working so hard to create. And finally, after being blistered in public for his actions that offended everyone, he fires back at Judge Williams and tries to humiliate him.

The Broward Blog published the link to these memos first. Good for them. That is how you have to deal with bullies. You shine the cold harsh light of truth and publicity on them, and make them try and act in their bully and demeaning ways with everyone watching.

See You In Court.

WILLIAMS v GROSSMAN

UPDATE: JURY CONVICTS DEFENDANT IN CASE BEFORE JUDGE GLICK.
This is the case that took several years to bring to trial because of allegations that the defendant engaged in tactics to delay the case by firing his lawyers. He was convicted after 2 hours of deliberation for murdering a 5 year old girl. The penalty phase is next.


We really didn't do justice yesterday to the dust up in Broward County. The memos that flew between Judge Grossman and Judge Williams are printed in their entirety on the Broward Blog.

BACKGROUND
Former Chief Judge Dale Ross (isn't it great to read that? It was fun to write it.) formed a diversity commission and asked Judge Elijah Williams to chair the commission. Judge Williams was the first african american male Judge appointed in Broward in over 20 years. Williams agreed, so long as he had complete discretion to run the commission as he saw fit. As he wrote in his memo to Judge Grossman, he told Judge Ross he was not "going to carry the white man's water" and was going to be looking at the diversity issue "from a different prospective."

As the Commission began it's duties, it utilized the services of Alexandra Rieman (General Counsel to the 17th Judicial Circuit- talk about having your hands full lately), Carol Ortman (Court Administrator of the 17th Judicial Circuit- ditto) and Florida Commission on Human Relations commissioner Shahrukh Dhanji.

So far so good.

Recently it appears Judge Williams and his staff, in conjunction with various "ethnic Broward Bar Associations" had been meeting and researching the idea of the Commission receiving and adjudicating complaints.

Enter Judge "Not on my watch" Grossman, who at the time was acting Chief Judge of the 17th Judicial Circuit as Judge Ross was in the hospital getting an experimental "Ethics transplant." (Latest word is that unfortunately it didn't take.)

Grossman - without informing Chairman Judge Williams met with and dismissed Rieman and Ortman because Judge Grossman concluded, unilaterally and by fiat that the Commission did not have the authority to hear and resolve complaints. Judge Grossman also struck down plans that the Commission had for more diversity training for Broward County Judges because- we are not making it up- the Judges were in compliance and didn't need any more training.

Judge Williams received the memo from Grossman after returning to his chambers from the recent vote on the new chief judge.

Judge Williams started his memo to Judge Grossman admitting he was "more than angry" at learining of Judge Grossman's actions. Williams made reference to the 1952 Ralph Ellison Novel "Invisible Man" which is a novel about the struggle of Black Americans in the US. "I am invisible, you understand, because people simply refuse to see me."

The memo is just brilliant and you really need to go to the Broward Blog to read it in its entirety. But here are our favourite parts:

"For you to have arbitrarily removed Ms. Rieman as the Board's legal advisor without first speaking to me, is disrespectful. [To worsen matters, you must have known that tomorrow evening the Board was scheduled to review the proposed plans of the various ethnic Bar Associations, and Ms. Rieman's presence was clearly indispensable.]


I find it incomprehensible that at a time when every other Judicial Circuit in the State of Florida is being mandated to provide additional diversity training in 2007-largely due to the inappropriate comments of Judges in our Seventeenth Judicial Circuit - you have concluded that our circuit has complied and needs no additional training this calendar year.


More astonishing is you inference that there are matters involving the Diversity Board that do not have a significant impact on this Circuit. I strongly disagree....I say this as the first black male judge to be appointed to Broward's Circuit Bench in over two decades.

Nevertheless since you obviously know more about diversity issues than I, I have no choice but to tender my resignation....


Rumpole says: This is great stuff. It uncovers and brings to light the crude and careless manner that Judges In Broward have run their courthouse and courtrooms. Bravo to Judge Williams for not being intimidated and for not letting Judge Grossman have his way with a Commission he has no business meddling in.

One wonders just what Judge Grossman was afraid of?

Why did he feel it necessary to emasculate the Diversity Board during his brief unelected tenure as a stand in chief judge? Judge Grossman had a mandate to do one thing- not screw anything up. And of course, being a Judge North of the Border, he could not successfully complete his mission.

The more you think about it, the more unseemly this whole episode is. Grossman really had no mandate or authority to do anything involving the Diversity Board. It was as if this was one last ditch effort by Ross from the hospital to cover-up and keep a lid on things North of the Border.

Grossman needs to be called to account for his actions. Just what emergency forced him to act by himself and start firing members of the Board?
Why didn't Grossman consult with the Chairman of the Board and fellow judge Elijah Williams?

These questions need to be answered. They should not be allowed to wither on the vine and die. We have caught a Judge covering something up for reasons that are not yet clear.

Time, pressure, and demanding answers to questions can start the process of changing things for good in Broward. New Chief Judge Victor Tobin has an opportunity to quickly show all of us that things will be different. Lets see if he is up to the task.

A good start would be re-instating the members of the Board that Grossman fired, along with a written apology to Williams, and a request that he resume his role as chairman of a much needed Board.

We will be watching along with our brother bloggers in Broward.

NEWS

Several sources confirm that John Thornton is now Judge John Thornton.

Congratulations!

Explosions in NYC this evening on 34th and Lexington appear to be a steam pipe explosion and "not terrorist related." What a shame that we live in a time where that has to be said.

BROWARD DIVERSITY COMMISSION NO LONGER DIVERSIFIEDJudge Elijah Williams resigns from the commission: "I will not be carrying the white man's water..."

The Herald REPORTS

Judge Elijah H. Williams -- the first black judge to be appointed to the Broward bench in 20 years -- resigned Tuesday as the chair of the court's recently created diversity board, accusing the county's chief judge of interfering with the board's mission.
The resignation comes one day after a new chief judge was elected in an effort to restore a sense of dignity to the bench, whose judges have come under scrutiny for a series of insensitive remarks.
In a hand-delivered letter to acting Chief Judge Mel Grossman, Williams angrily denounced Grossman for a meeting he had with diversity board lawyers without his knowledge.

...

Chief Judge Dale Ross created a diversity board, a four-member committee charged with raising cultural sensitivity on the bench. Ross is recovering from hip surgery, with Grossman serving in his stead during his recovery.

In a strongly-worded response, Williams said he should have been included in the meeting and that Ross had given the board ``carte blanche authority to field diversity complaints, etc.''
'. . . I made it clear to Chief Judge Ross that I would not be `carrying the white man's water,' '' Williams wrote in the letter to Grossman. ``More importantly, I told the chief judge that I would look at these issues from a different perspective and he agreed not to control, hinder or influence me in any manner.''

Rumpole says: not a very promising start for the administration of new chief Judge Tobin. Say what you want, but give Judge Williams credit for speaking his mind.

Do we have a diversity commission in Dade?

Do we need one?

Does anybody carry anyone else's water in Dade?

I thought I saw one Judge carrying a Cafe Con Leche to another Judge's chambers the other day, but does that count?

See you in Court. Plus a substantial reward to any attorney who gives Judge Williams a silver bucket to commemorate his brave remarks.

SPORTS UPDATE

Atlanta Falcons QB Michael Vick was indicted yesterday for Conspiracy and running a dog fighting operation.

Of course Mr. Vick is presumed innocent until proven otherwise. Animal cruelty charges sit right on a par with child abuse as some of the most troubling accusations a client can face. The question we have is what do you think the Falcons organization does here? Do they ignore it and let the legal process play out, or move quickly, suspend Vick with pay so he can concentrate on his legal troubles and make a decision after the case?

This much we do know: if Vick was indicted in Miami and his case was assigned to Judge Huck, the case would be over by the end of August in time for the NFL season.


DOLPHINS CUT CULPEPPER

The Miami Dolphins cut their latest savior QB, Daunte Culpepper, ending an experiment with an aging and injured QB that cost the organization over 5 million dollars.
Being a Dol-Fan these days is beginning to feel like being a Cubs fan. You could be 30 years old, born and raised in Miami, and not have been alive the last times the Dolphins won a Super Bowl. That is a disturbing thought.


BROWARD PD SPEAKS HIS MIND

The Broward Blog quotes Broward PD Help Me Howard Finkelstein on the election of a new chief judge:

Broward Public Defender Howard Finkelstein welcomed the change as a ''watershed'' that he hopes will end what he called Ross' ''secretive and autocratic'' administration.''They ruled through fiat and fear,'' Finkelstein said.
``The tools they used were vicious, rank rumor-mongering designed to destroy the reputations of individuals who differed with them.''

Rumpole says: "They ruled through fiat and fear" and that was with the people they knew and worked with every day. Imagine how they treated the poor misguided Miami attorney that said to him/herself "what they heck? Sure I'll take a case in Broward. How bad could it be?"
Hahahahahaha.

See you in Court. I'm the guy with the Cubs hat on.

CHIEF JUDGE AND PD SALARIES

Broward has elected a new Chief Judge. Victor Tobin wins 49-38.

The Broward Blog also has some good information on how Broward continues to send non-violent african americans to prison twice as much as any other county.


PD SALARIES???

A controversy has erupted on the blog comments section. I received an email purporting to list the salaries for top paid PD's. I didn't feel right about posting it. I then received several private and public emails in support of publishing the list, so I published it; then I took it down. I am willing to consider changing my mind but here are my thoughts:

There is no allegation that anyone is doing anything wrong here. Thus, I am forced to conclude the spirit behind the desire to post the salary list is malicious and intended to embarrass those on the list. The list is public record and easily obtained. Anyone can create a website and post the list for whatever purposes they have.

My thought is that a salary is sort of a personal matter. I freely admit we have mocked and ridiculed individuals on these pages, but in every instance it was a public figure doing something related to their job. To just try and embarrass someone based on how much they earn or do not earn just does not sit right with me.

Therefore, until someone can convince me otherwise, I choose not to publish the PD salary list, and I would make the same decision for the SAO salary list. If anyone has information that someone is earning a salary for something they are not doing or have not legitimately earned, we would allow those posts up and invite comment on the matter.

As my law school professor used to say every time I gave the wrong answer in class "Sometimes wrong, but never in doubt."

See You In Court.

CHANGES IN FEDERAL COURT. NEW CHIEF JUDGE IN BROWARD TOMORROW!

Laptops and cellphones in Federal Court? Posting plea deals on line?
Making the court more accessible and user friendly?

All this and more is being promised by new Chief Federal Federico Moreno in a
DBR INTERVIEW

BROWARD GOES TO THE POLLS TOMORROW

And speaking of new chief Judges, we get a new one tomorrow in Broward, as those wacky fun-loving, gift receiving group of jurists meets to elect a new Pope…err…Chief. Look for the white smoke coming from 201 SE 6th street in a time honored ceremony announcing the new Judge. The new Judge will then be escorted out of the courtroom, where grateful lawyer vying for favors and court appointments will throw gift cards loaded with money redeemable at the local malls.


THE FEDS ARE NOT SUPERSTITIOUS

The Federal Blog reported that the Government rested it’s case against Padilla and his co-defendants on Friday the Thirteenth. Assistant United States Attorney Russ Killinger made the announcement before the jury while standing under a ladder, holding an opened umbrella in one hand and a black cat in the other. We shall see how the government’s tempting of fate flies in this matter. Mr. Markus had some interesting points on his blog about how lawyers speak in the third person future in court. (“The government will rest our case” etc.) We are from the plain speaking school – The Defense Rests. Period.


CASE DISMISSED.

And speaking of the Feds, we came across this nice ruling from Federal District Court Judge Lewis A Kaplan of the Southern District of New York. Judge Kaplan dismissed charges against 13 defendants in a wide ranging prosecution of KPMG former employees for use of illegal tax shelters. The Government had pressured KPMG to reverse its long standing policy of paying for the legal fees of its employees. With the government choking off the legal fees, and thus their choice of counsel, the Judge dismissed the case.

Such pressure, Judge Kaplan wrote, “foreclosed these defendants from presenting the defenses they wished to present and, in some cases, even deprived them of counsel of their choice. This is intolerable in a society that holds itself out to the world as a paragon of justice. The responsibility for the dismissal of this indictment as to thirteen defendants lies with the government.”

What we like about the ruling is the line about a society that holds itself out to the world as a paragon of justice. It echo’s the recent dissent of Justice David Souter in Bowles v. Russell, decided this term: “it is intolerable for the judicial system to treat people this way.” He added, “There is not even a technical justification for condoning this bait and switch.”

Lets get off the bandwagon of this Country having the greatest system of Justice in the world. We have a Justice System that has blatantly stated that there is no problem with innocent people remaining in prison if they do not meet the myriad of requirement necessary for a hearing when there is newly discovered evidence. We have a justice system that tolerates convictions in death penalty cases where the attorney for the defendant was sleeping, so long as he was not sleeping during the important parts. And for that matter, we have a justice system that still has the death penalty, which puts us in the company of China, Iran, Iraq, and North Korea.

The bottom line is our justice system was founded on great ideals and currently operates in a manner that is oppressive, confusing, and draconian. Thanks goodness we have a President courageous enough to stand up to these draconian prison sentences, as he recently did for Scooter Libby. But enough with this “best in the world” crap. Our system is far from the best in the world, and there are tens of thousands of victims of injustice at the hands of our system to prove it. The problem is not that mistakes are made, the problem is that judges and legislators are just not that bothered over rules that lend themselves to results like those in Bowles, or where innocent people remain incarcerated and nothing can be done about it.

See you in court, not tooting our system of justice’s horn.

I WANT A REAL LAWYER

What Public Defender hasn’t heard that complaint from a putative client?

The NY Times has reported on a STUDY in which Federal Public Defenders are measured against private lawyers appointed pursuant to the Criminal Justice Act. The study sampled cases in Federal districts in which PDs and CJA lawyers were randomly appointed meaning, the study said “ that the two sorts of lawyers had the same underlying distribution of guilt in the cases they represent and thus are equally likely to lose at trial.”

The results, not surprising to us, was that the PDs consistently achieved better and quicker results for their clients.

From the article:
Over all, defendants represented by court-appointed lawyers received sentences averaging about eight months longer. People convicted of violent crimes were given five more months, while those convicted on weapons charges received nearly a year and half more. But those convicted of
immigration offenses received sentences that averaged 2.5 months less if represented by appointed lawyers.
Appointed lawyers took longer to resolve cases through plea bargains — 20 days on average, a 10 percent difference.
“These results appear consistent with the hourly wage structure,” Ms. Iyengar wrote, as that structure creates incentives for appointed lawyers to take longer to resolve cases.

Rumpole says, this is a matter of economics, specialization, and experience. Federal PDs are hired with more experience than their state counterparts. Federal PDs are paid very well, and unlike the private CJA lawyers many of which cannot confine their practice to just handling federal cases 100% of the time, the PDs quickly gain more experience in the cases they are assigned to handle then the CJA lawyers.

Bottom line- there is nothing surprising about this study. Give an experienced lawyer a good salary and have them specialize in one area of the law like criminal defense, and there is no doubt that they will achieve better results than the jack of all trades. Think about it, if you needed a difficult surgery, would you go to a GP who dabbles in surgery, or a surgeon who specializes in the procedure you need? Even if that surgeon was working for say JMH, which is a public hospital, you would be better off with the surgeon every time.

NO BOYCOTT HERE.



Our favourite Federal Blogger has ruffled some feathers by suing the US Government to allow internet broadcasts of “cock fights” from Puerto Rico where it is legal. Mr. Markus, “ace defense attorney- cum- pugilistic Poultry provocateur” has incurred the wrath of the US Humane Society with his lawsuit. While we find ourselves in the unfortunate position of siding with Attorney General Alberto Gonzales on this one, we hope Mr. Markus avoids becoming tarred and feathered in this cock and bull battle. If you see a lawyer scurrying from Federal Court being harassed by a large chicken protesting the lawsuit, lets us know, as we can then post a well deserved "I told you so."



PLEASE COME TO MIAMI FOR THE FALL

Various news media outlets reported yesterday that Governor Crist has appointed the Dade State Attorneys office in investigations into Broward Judge Zack and former Judge Seidlin. Based on our post yesterday about possible improprieties with Judge Charlie Kaplan, can we expect the Dade SAO to form the “Broward Judicial Investigations Unit” which might just be known by its initials “The BJ Unit”? Hmmm…..

Can you just hear the Broward Judges complaining how Miami Judges don’t call their cases out of turn, set their cases for 8AM status conferences, and deny continuances the first time up?

From what we know that has been reported, we see a qualitative difference between the alleged acts of Judge Zack and Seidlin. Zack quite simply should have known better and will have to suffer the consequences (which we think should NOT be removal of office) for taking a loan from an attorney who appeared before him.
Seidlin on the other hand, whenever he wasn’t crying on the bench, or playing tennis, apparently had his sticky fingers in many pots- from receiving real estate favours from elderly neighbors, to sending lawyers on shopping trips for his wife. Selling his robes merits strong punishment, if in fact that is what happened here.

See You In Court tomorrow.

HERE WE GO AGAIN

You have to admit, those wacky Judges North of the Border just don’t know when to stop. One day after receiving a coveted Rumpolian seal of approval for demonstrating what we saw as care and concern for a juvenile defendant who was wearing all black in his court, comes news that Broward Judge Charlie Kaplan may have exchanged a light sentence in a juvenile case for a boat ride in a parade. Once again, we do not have the imagination to make this stuff up.

The Sun Sentinel obtained a memo written by Broward assistant public defender Tanya Simpson in the case.

From the Sun Sentinel Article

During a June 12 courtroom recess and before imposing a sentence upon a teenage boy, Broward Circuit Judge Charles Kaplan gave his business card to the teen's father after he told the judge he could get free tickets to social soirees, according to Assistant Public Defender Tanya Simpson's memo…

Simpson wrote that Kaplan "seemed impressed" when the teen's father said he had been the piano player at the June 10 send-off of the Emmy-winning mob drama The Sopranos at the Seminole Hard Rock Hotel & Casino.Kaplan seemed further impressed, she wrote, when the father said he could get the judge free tickets for other events, such as a yacht ride during the annual Winterfest Boat Parade along the Intracoastal.

The article also alleges that Kaplan gave the father of the Defendant his business card.

Rumpole says, one day we are supporting the Judge Kaplan, despite our discomfort in finding anything to approve of about a North of the Border Judge, and the next day Kaplan is demonstrating the kind of judgment we normally expect from North of the Border:

Let’s see, free tickets and a ride on a yacht in a Christmas parade…woopee!!!! versus a virtually secure (no one gets opposition in Broward) 150K a year job, plus benefits, plus you only have to work four hours a day before hitting the tennis courts (See, In re Seidlin). “Yes Virginia, there is a Santa Claus. ‘I’ll take the yacht ride AND keep my job because I work North of the Border.’ “

OK, I see it is time for us to intervene. We cannot just sit on the sidelines and watch the entire Broward Judiciary implode on an orgy of greedy stupidity.

If you are a Broward Judge, please commit these simple lines to memory. Then every morning, while you are in the shower, just repeat them for a few moments:

“I will neither take nor solicit gifts.
I will avoid the appearance of impropriety.
The appearance of impropriety does NOT mean giving the other side an equal opportunity to match the “gift” one party has given me.
I will pay for all my meals myself.
I will endeavor each and every day to work more than four hours a day.
I will be nice to lawyers from Miami.”

OK. We couldn’t resist. Ignore the last mantra. This is hard enough without asking you to do the near impossible. However, it is really that simple. Just follow these simple rules and Rumpole guarantees you can spend your career in that miserable little courthouse demeaning attorneys, being rude to the public, scaring defendants, and laughing about it when you get home. In other words, you can be a normal Broward Judge and not risk having your career destroyed by the news media.

Just remember, the next time you are denying a Miami’s lawyers motion for continuance for the week they are getting married ( we actually saw Broward Judge do that once) the lawyer you are being mean to just might be the well intentioned lawyer who gave you this career saving advice.

See You In Court, where Judges rarely if ever, give US their business card. (Who even knew they had business cards? For what purpose does a Judge need a business card? If you think about it, it can only get them in trouble. It’s not like they can say “here…if you ever need anything give me a call. The next thing you know, they'll be carrying badges: "FREEZE! 17th Judicial Circuit. Get out of the car and give me the bag of marijuana.")

SIMS GETS NEW TRIAL

The Florida Supreme Court reversed the denial of a Rule 3.850 motion and ordered a new trial for Merrit Sims, who was prosecuted for killing Miami Springs Officer Charles Stafford in June of 1991 during a traffic stop.

The opinion is here: OPINION

At issue was the admissibility of a K9 alert to drugs in a car in which no drugs were found. The Prosecution was represented by Former Prosecutor Gary Rosenberg, who also ran for State Attorney in the last election. The theory of prosecution was that Sims, who was on parole, had killed Stafford because there were drugs in the car and Sims did not want his parole violated.

Sims was represented at trial by two veteran defense attorneys, Clinton Pitts, and Arthur Carter.

The holding of the case is that Pitts was ineffective for failing to object at trial to the introduction of the testimony of the K9 officer. Judge Carney had previously ruled that the testimony was admissible, and Pitts testified at the evidentiary hearing that he was surprised he had not objected at the time the testimony was introduced.

Rumpole says: First off, trials are difficult businesses, and the defense of a person alleged to have killed a police officer is as difficult as it gets. No negative aspersions should be cast against Mr. Pitts. Sometimes, in the heat of battle, lawyers neglect to do what they need to do. By that we mean that often times several things are occurring at once: the lawyer is listening to the testimony, listening to his client, reviewing his notes, and otherwise trying to think two steps ahead of the other side. While the issue is technically framed as "ineffective assistance of counsel" the record otherwise indicates that Mr. Pitts and Carter did a very good job in defending their client.

The real issue we think is this ridiculous concept of preserving the objection at trial after a pre-trial motion was denied. The record is clear that Mr. Pitts argued against the introduction of this evidence prior to trial. The mere fact that Pitts either didn't object ( or that the court reporter did not report it, which is in our opinion just as likely) should not have stopped this issue from being litigated during the direct appeal. If that was done, then this matter would not have to be reopened 16 years after Officer Stafford was murdered.

See You In Court, objecting, objecting, objecting.

OUCH

UPDATED BELOW!

We have some thoughts on Broward Judge Charlie Kaplan and his comment to a juvenile defendant who was wearing all black in his courtroom,

From the Broward Blog:

A fourteen year old is caught at school with a razor blade in his pocket. At an adjudicatory hearing, Kaplan asked the juvenile if he was "wearing all black that day too?. . . Is that the color you like going with? Black all the time?" A case manager told Kaplan that the child was not a danger, and the child's mother explained that her son had never been in a fight or hurt himself. The judge then associated this minimal crime with the horrific events at Columbine where two students killed twelve people: "I mean, I'm no expert. I just know what I read in the papers, but it's like Columbine, right? He's dressed in black. . .He's depressed." When defense counsel argued that the events of Columbine should not be taken into account, Kaplan responded, "[w]ell, I don't agree with you." Kaplan denied J.R.'s Motion to Disqualify, but today the 4th DCA granted a writ of prohibition finding that J.R. has a reasonable fear that he would be more harshly sentenced due to his choice of wardrobe colors, apart from the facts of the case.
J.R. v. State, case number 4D07-1361 (Fla. 4th DCA July 11, 2007).

Rumpole says: Just hold on one second. A young man has a weapon in his pocket in school. He appears in court wearing all black, perhaps in an attempt to dress in the "Goth" fashion. The Judge is concerned that the young man may be depressed. The Judge knows that in another case responsible people overlooked the warning signs of young men who had weapons, were depressed, dressed in a "Goth" style, and ended up shooting up a school.

As much as it pains us to rise to the defense of a Judge North of the Border (lord knows they would never do the same for us) we do not think Judge Kaplan did anything wrong. This is Juvenile court. Among other things, a Judge becomes a quasi-social worker-psychologist-Judge, in trying to fashion remedies to assist children and their families. To require Judge Kaplan to remain blind to what he is seeing is just wrong. Don't we want our Judges to remain vigilant to problems that they might be seeing in the children that come before them? There is nothing to suggest that the Judge treated the child more harshly because of what he was wearing. It appears to us that Judge Kaplan was saying "hey, there might be more here than meets the eye. Lets do something before another tragedy occurs."


If a young person appeared in court in Miami wearing a swastika on a tee-shirt, and raised their hand in a Nazi salute when appearing before the Judge, wouldn't the Judge have a responsibility to see that the child got some help?

We think the 4th DCA was not correct in deciding this case strictly along the lines of just considering Judge Kaplan's comments about the attire of the young man. It has never been more apropos to say "there may be more here than meets the eye" meaning that the manner of dress of a teenager MIGHT indicate something else was going on. And then again, the manner of dress may not have meant anything. The point we are making is that we do not think Judge Kaplan was doing anything wrong in making an inquiry to make sure there was not a problem. This is what we want our Judges in juvenile court to be doing, and we applaud Judge Kaplan for taking the time to be concerned.

There. It didn't come easy, but then we have defended worse clients than this before. A Rumpolian defense of a Judge North of the Border. And there is not even a blue moon outside.

See you in court.

UPDATE:
After this post went up, we received this comment, which is just so good that it needs to be included in the post:

Broward Judges are all dressed in black robes including Judge Kaplan. Does this mean they are depressed? Well maybe after all that has been going on with them they should be.

Rumpole says: well done.

JUDGE SCOLA HONORED

We received this press release yesterday:

The Honorable Circuit Judge Robert Scola has been named the 2007 recipient of the William M. Hoeveler Judicial Award, presented each year by the Florida Bar to a judge who best exemplifies strength of character, commitment to service, and competence as a jurist, lawyer, and public servant.



Judge Scola received his award on June 28th during the Judicial Luncheon of the Florida Bar’s annual meeting, held this year in Orlando, Florida.
This prestigious award is presented each year by the Henry Latimer Center for Professionalism. Past award winners include:

2001 William M. Hoeveler, Sr. Judge, U.S. Federal Court, Southern District
2002 Major B. Harding, Justice, Florida Supreme Court
2003 William Terrell Hodges, Sr. Judge, U.S. Federal Court, Middle District
2004 Barbara J. Pariente, Justice, Florida Supreme Court
2005 Durand Adams, Judge, 12th Judicial Circuit
2006 Ralph Artigliere, Judge, 10th Judicial Circuit

Rumpole says: Well done Judge Scola!

Judge Glick Controversy:

We received an email reminding us that Judge Glick's comments on the length of time it took to bring the Braddy murder case to trial was nothing more than a recitation of facts in an article Oh Susannah Nesmith wrote for the Herald the other day. We stand by our comments that by merely explaining why the case took so long to bring to trial was not improper.

See You In Court

MOTION FOR A CONTINUANCE

“DELAYS HAVE DANGEROUS ENDS”
King Henry VI, Part I, Act 3 Scene II.

After some procrastination, a debate has broken out on the blog about delays in criminal cases. We started the contretemps with a blub about a case before Judge Glick that took several years to get started. After that we responded to some comments on the blog, and our position was that we would delay a case if it benefited our client. To that end, we recognize that delays usually adversely affect the prosecution and benefit the defense. As we often tell our clients, after the arrest, the case is not going to get better for the prosecution, while there are a whole host of things that could happen that could make it better for the defense. We commented that delaying a case was not unethical. Then this comment arrived:

To Rump at 5:49 and Anonymous at 8:51, have either of you read Rule 4-3.2 of the Rules Regulating the Florida Bar recently? It specifically states that lawyers should expedite litigation. There is no exception concerning criminal defendants. While the end result may be beneficial to your client because witnesses disappear and your client gets a better plea, I definitely would not characterize such an action as "ethical." You are lucky that there are so many defense attorneys involved with the Florida Bar and grievance committees because, unfortunately, I doubt that your conduct will ever be disciplined, especially since almost every defense attorney engages in the same conduct. But just because everyone does it does not mean it is ethical.

Rumpole responds: There are two issues at work here, but for now we will address the issue of delaying a case for the sake of a client. The rule cited above states exactly as follows:

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

First, usually in a civil matter, the interests of the client side with a quick resolution. Thus the rule appears, but does not state, that it is aimed at civil cases. However, one can imagine a situation with a client incarcerated who needs a quick resolution. So the real issue is, what does a lawyer do when the interests of his client lie with a delay in the matter? The comment attached to the rule states in part: “Nor will failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose.”

Thus, on first blush, it appears, that a defense attorney delaying a case for the benefit of his/her client is in violation of this rule.

Rule 4-1.3 (Diligence) contains this statement in the comments: “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”
(reading all these rules is starting to make us a bit nauseous. We have a policy against research in general in most matters.)

Let’s take it to the extreme: A lawyer is hired to represent a client accused of aggravated assault with a firearm where the gun was discharged. The client is facing a 20 year minimum mandatory under the 10-20-life statute. The state lists 5 witnesses: one complaining witness; one eyewitness; 3 cops. The lawyer quickly takes the two witnesses depositions and realizes the cops who did not see the event are probably not that important. The three cops, as is their practice, fail to appear for their first two scheduled depositions. Along the way, the lawyer learns that the two witnesses have met, fallen in love, and will be moving to Australia to start their new life in a month.

The case appears for sounding- can the lawyer, knowing that a continuance will benefit his client, truthfully tell the court he needs a continuance because the three officers failed to appear for deposition?

Has the lawyer acted with zeal and advocacy towards his client, or is the lawyer in violation of Rule 4-3.2?

We must admit we would ask for the continuance. We do not feel we are doing anything unethical, and we are acting in our client’s best interest. However, legal minds may differ, and we expect to hear from our readers about this.

The other side of this coin, as we mentioned above, are the time constraints associated with the current practice of criminal law. Most practitioners do not get clients that can pay fess such that they can concentrate on just a few cases. Many criminal practitioners will handle a gamut of cases running from murder to DUI, and various second and third degree felonies and misdemeanors in between. The small stuff, which can become time consuming, pays the bills while the lawyer scrambles to make time to work on the big cases. The change in the court appointment payment system only makes the pressures worse, not better.

The fact of the matter is that this is the real reason serious cases take so long to prepare. The lawyer is balancing the work on the case against the constant demands of the smaller cases that pay bills, and demand attention as well. Much like the problems doctors are facing, we would all like to spend more quality time with our clients working on their case. But the demands of running an office and paying bills work against all but the most fortunate among us.

We continue to persist in both comments we previously made: The State court system can do more to guard against the unreasonable delays of cases taking years to prepare for trial; and any lawyer who delays a case for their client’s benefit is not acting unethically.

We invite comments in the matter.

See you in court, not asking for continuances, as we like trying cases.

VERY VERY

Very Quietly

Judge Tunis wrapped up a two defendant-two jury first degree murder case last week. Two defendants, at least four lawyers, two twelve member juries. By any account, these cases are difficult and require a firm guiding hand. Judge Tunis has previously been the recipient of criticism on these pages. Therefore, we feel it is only appropriate to give a Rumpolian “well done” for her job in managing the trial.

Very Loudly:

Broward defense attorney Chris Roberts has been very loud recently, with his double barrel allegations about Judicial corruption North of the Border. First Roberts was giving the scoop to Channel 7’s Carmel Cafiero about an unpaid loan of $2,500.00 to Judge Zack. When the dust had barely settled from that mess, there was Roberts talking about Judge Seidlin putting the arm on him for a thousand dollar purse for his missus. From A(nna) Nicole Smith’s Judge to Z(ack) Roberts accusations made an already trying time for the Broward Judiciary seem like Watergate Broward style.

Now comes the Sun Sentinel Article that reveals that, surprise surprise, Mr. Roberts goes to Tallahassee. It seems that after 23 years as a defense attorney in Broward (talk about doing hard time) Mr. Roberts has decided that his presence at 201 SE 6th Street is no longer desired.

It has been hard to sit by and not speculate about what hidden agenda Mr. Roberts has by all of the sudden coming forward to announced that he is “shocked! Shocked!” to learn that there is corruption in the Broward County Court house. Roberts could have asked Zack for the loan back. Roberts could have immediately said no to Seidlin and reminded him of the several rules of ethics that would prohibit him from giving expensive gifts to a sitting Judge who was appointing him to cases. It is not that we do not wish to see Seidlin and Zack investigated, and punished if necessary, it is just that Mr. Roberts bears some responsibility for the corruption he has been benefiting from for these last 23 years.

Very …..(longly?)

Word also reaches us that after zillions of lawyers and Judges, Judge Lenny Glick is wrapping up voire dire for a man charged with first degree murder who has sat more than seven years waiting for trial.

Nobody is served when a case takes this long to bring to trial. We remember a time when the Florida Supreme Court monitored the age of cases on a Circuit Judge’s calendar. If that is still not going on, perhaps it is time for our chief administrative Judges (when their not busy ignoring our emails and canning Judge Klein) to institute some system of monitoring the age of cases and requiring the parties to report on just what is taking so long. A first degree murder trial takes time to prepare. A year is not unreasonable and neither is two years if the attorney has another big case brewing. But seven years creates an impression of a justice system out of control and it panders to the worst stereotypes the media has about the efficiency of our system.

It's a long hot summer, and but for the fireworks up North, it would be a boring one too.

See You In Court.