When you see something that is not right, not fair, find a way to get in the way and cause trouble. Congressman John Lewis
JUSTICE BUILDING BLOG
Wednesday, April 30, 2008
VOIR DIRE FROM HELL
The Scene: A modest courtroom on the fourth floor of our little building.
Judge Reemberto Diaz and a group of hardworking prosecutors (Gayle Levine headlining) and defense lawyers (Dan Lurvey, Ken White, Bruce Fleisher, and ??) are slogging their way through panel after panel of jurors.
Two defendants face the death penalty. Four criminal defense attorneys and two prosecutors pose endless questions to jurors, some of which are being questioned well into the evening hours when Rumpole prefers to be home sipping a glass of Chateau Miami River.
Just how long can this last?
No truth to the rumor Nightline on ABC will be running a "jurors held hostage day__" report every evening.
And while it pains us to do it, (give any of our robed readers credit) lets give Judge Diaz some credit here. He is in an election cycle and Friday at noon is the filing date. While many of his colleagues are out pressing the flesh, glad handling lawyers they would otherwise never give the time of day to, Judge Diaz is working a very difficult case. Judge Diaz came to the bench as a well respected attorney and he has not disappointed either side in his fairness and ability to run his courtroom. We are confident he will be reelected without opposition.
See You In Court, where voir dire past 7PM should be a crime.
And for those of you who practice in federal court, yes the rumors are true. There are actually courts in this country that give you more than "8 minutes 11 seconds" for voir dire. (And we have taken that quote from one of our last federal cases, where we had a rather difficult time suppressing the overwhelming urge to say "you've got to be kidding me.")
UPDATE. A reader sent in this comment to complete the picture of our humble little courthouse today:
Wonderful and true post about Judge Reemberto Diaz. But did you have too much Chateau Miami River to move through REG? In fairness to other floors/judges at REG there's Judge Stan Blake holding a meeting at 5:30 about setting up 'drug court' in the divisions where the judges themselves have not done so, Judge John Schlesinger in a trial with a difficult pro se defendant-where rumor has it Faretta has been repeated every 5 minutes, next door is Judge Dava Tunis doing Arthur Hearings and Frye hearings all afternoon, Judge Glick trying a trafficking case as a back-up judge always ready, willing and able to work, Judge William Thomas who sends out emails to volunteer to try any judges case (just as Judge Julio Jimenez does almost weekly), Judge John Thornton who closes out 150 cases in 4, yes that is 4 days, ( a plea blitz in Leesfield/Tunis that lasted 9 hours with the judges bringing in food), Judge Soto who is ALWAYS working and is awesome as administrative judge when Judge Blake is out donating an organ or 2. Now what's going on in the county north of the border in criminal court? Come on people; we actually have judges at REG that spend time and DO SOMETHING about issues like a separate attorneys line to get into the building and a window at the clerks office (Judge Sam Slom). Can anyone in Dade ever admit that anything is okay and that many judges-while imperfect-actually try and work hard?The post on Judge Diaz is true and well deserved. Finally some positive comments. Those of you whose lives stay at REG have NO idea what judges can and are like in other counties, let alone other states and jurisdictions. Finally Rump, something positive. All the negativity becomes passé, as they say across the pond.
And then this comment from a fan of county court:
Let's also give credit to our County Court judges. Arzola, Krieger-Martin & Ortiz were all in trial and that was just the 5th floor's count.
Rumpole replies: well said. We grudgingly admit we have some hardworking and talented judges. But we just don't like to say it very often.
Tuesday, April 29, 2008
THE UPS AND DOWNS
Have a case in federal court?
Here are your choices: The Dyer Building and all the mold you can breathe or...
the King Courthouse which has eleven floors, and ONE working elevator at any given moment. Don't even bother saying a word when you race into court 20 minutes late for a hearing. The Judge already knows. You were in the building a half hour ago, and that's how long you waited to get into an elevator.
Meanwhile, the Wilkie Ferguson courthouse sits there like a gleaming glass joke, laughing and mocking the lawyers trudging around it on the way to the Mold or the Stairs. A marshal recently whispered to us that on some days NO elevators were working in the new courthouse. And MOLD is not a word confined to the Dyer building.
(laughing at us?)
Yup, as surprising as it may seem to our federal architect experts, in South Florida, the combination of heat and humidity creates....all together now...
No- not weapons of mass destruction, but nice try Mr. Vice President.
It's Mold. And the Feds have plenty of it.
So there you have it. A nice juicy federal case walks into your office, and after the cheque clears (nobody takes cash do they?) you have a year ( or two weeks if you get Judge Huck) of running up and down the stairs of the King building; holding your breath in the Dyer building; all the while staring wistfully at the new Wilkie Ferguson courthouse, which combines the best (or worst) of the other courthouses.
See You In The REGJB, where the elevators work. And so do the escalators. And even when they don't, it's only six stair flights of courtrooms and most of us can use the exercise
Monday, April 28, 2008
BILL GELIN ON JUDGE GARDINER
Because I believe it is highly unlikely that Broward State Attorney Mike Satz will take the necessary steps to uncover the truth in the controversy involving his friend Judge Gardiner and his prosecutors, it is once again up to the rest of us to make sure justice prevails in Broward County.
Therefore, I am preparing a witness list for the JQC for an investigation of Judge Gardiner. I am looking for information, evidence, or witnesses who can prove or disprove allegations that the Judge and certain Assistant State Attorneys (whether or not named in the New Times article) may have compromised criminal prosecutions. Please email me at firstname.lastname@example.org with the heading "Re Judge Gardiner". You can also send information through the "Anonymous Tip Box" or through an anonymous email address, or through a comment on the blog.
Additionally, I am preparing public records requests for the State Attorney, the Public Defender, the Clerk of Courts, the Department of Corrections, and BSO. The goal is to compile a list of current inmates who may have been improperly prosecuted or who are currently being prosecuted before Judge Gardiner.
I will do my best to assure they receive a copy of the New Times article, so they may pursue or preserve any remedies that may be available. I am also interested in contacting individuals who may have completed their sentences, though I feel current inmates should be the priority. If you have the name of an individual defendant who you feel may have been mistreated, please send the name and case number along.
I will also be contacting the Supreme Court, The Innocence Project, The CCRC, and federal authorities on the death penalty issue. I would appreciate it if anyone experienced in death penalty matters could contact me with additional suggestions on how to proceed with this particular situation.
The death penalty allegation, if proven, would have to rank as the most egregious malfeasance by any judge I have ever heard of. However, as serious as the death penalty matter may be, I believe the allegations regarding Mr. Patanzo, the former lead prosecutor in Judge Gardiner's division, warrant even greater scrutiny. The sheer volume of defendants who may have been impacted, to say nothing of the tenor and inexplicable zealousness of the pre-ROC prosecutions and sentencings (which often required action by the 4th DCA), demand it.
Lastly, I call on Judge Gardiner to come forward immediately to publicly refute the allegations or to admit them in the interest of restoring integrity to the numerous prosecutions that may have been compromised. Judge Gardiner is, of course, entitled to the same protections as any judge accused of wrongdoing. However, most JQC proceedings have to do with aberrational behavior by judges that typically does not impact prosecutions. In this situation, a man’s life hangs in the balance, and hundreds, if not thousands, of prosecutions have been called into question. I therefore hope that Judge Gardiner will subordinate her individual rights to the greater need of restoring integrity to the Florida and US Constitutions, which will remain tarnished until the Judge and the Broward State Attorney’s Office are cleared of all allegations.
Rumpole says: This is a remarkable undertaking by a lawyer who practices every day in the Broward courthouse, before judges -many of whom are probably friends of Judge Gardiner.
But when something is wrong it is wrong and Mr. Gelin possess rare courage take this battle on.
"All that is necessary for the triumph of evil is that good men do nothing."
Attributed to Edmund Burke.
SOMETHING IS IN THE AIR
In one hallway, there was a judge grabbing a bunch of lawyers into chambers where the judge personally brewed a batch of Cuban coffee.
Then there was the courtroom where the Judge could not have been more helpful.
Judge: “Motions in writing are for strangers. We’re all friends here. What can I help you with counsel? I’m here to serve the people of the state of Florida to the best of my ability. You want a continuance? Of course. A little delay never hurt anyone. No need to put in writing. In fact, I’ll pull the file, write the motion myself, grant it, and if you don’t mind, I’ll be happy to hand deliver the order to your office this evening. All part of the service with a smile we provide here”
Judge’s handing homemade cupcakes from the bench. Coffee in chambers. Continuances with a smile. What in the name of Arthur Snyder is going on here?
(for those of you new the building, ask a friend about Judge Snyder.)
Call us jaded, but could it be the filing deadline for candidates to challenge Judges that looms at then end of the week? Or have our Judges in Dade been sneaking off to take those sensitivity training seminars that are all the rage north of the border?
Either way, take our advice and strike while the iron is hot. Get those motions to dismiss or suppress on calendar this week. Move to continue the case while the atmosphere of love and happiness still wafts through the hallways and chambers.
Because next Monday, those Judges who do not have opposition will be secure for the next six years and ….well, let’s just say we would advise you not to pop in for some more home made Cuban coffee because those bailiffs carry handcuffs. And be ready for trial. Because continuances are for nice guys, and nice guys finish last.
See You In Court, singing Kumbaya this week. And trying cases next week.
Friday, April 25, 2008
The NY Times Story is here:
It is not believed that the Judge was drinking with or having sex with any of the attorneys related to the trial.
Now to Judge Ana Gardiner, of North Of The Border, where apparently we cannot say the same thing:
These links are on the Broward Blog but the stories are just too juicy for us to ignore here.
First, here is the link to the New Times story on the many loves and friendships of Broward Circuit Court Judge Ana Gardiner.
And here is the link to Bob Norman's story on the nasty letter the Judge had her attorneys send him:
All in all another day North Of the Border.
How about our colleague Fred Haddad's comments? "judges and prosecutors and defense attorneys have been drinking together and having sex with one another for years in Broward County."
"Not with us" Rumpole replies.
Of more concern to us is who was paying for those overpriced drinks at those snooty Broward pick-up joints?
Well there you have it. Flirting with attorneys while on the bench.
Canoodling with prosecutors who are trying a death case before her and everyone having a good laugh at the horrible crime scene pictures. But for the conscience of a law student who witnessed the event, we might never know of the pleasures of prosecuting a case in Broward.
See You In Dade County Court, where no Judge has ever bought us a drink, much less made a suggestive comment.
Thursday, April 24, 2008
Judge Tunis Needs More Time.
The comments are enlightening if not downright funny.
Here is the link to the post of Judge Tunis's request for more time.
We especially like paragraph ten of the request:
"10. Following the conclusion of the trial in December 2oo7, Mr. Thompson has filed with the undersigned in excess of 400 pleadings, emails, letters and missives (including pictorials) through today's date. These communications with the court are in addition to voluminous copies of filings related to other lawsuits filed by Mr. Thompson in the United States District Court for the Southern District of Florida and other lawsuits allegedly filed in the Circuit Courts of Miami-Dade and Leon counties."
(emphasis added by Rumpole.)
In the interest of disclosure, Mr. Thompson has filed a bar complaint against "Rumpole" (lord knows what they do with those in Tallahassee) and has threatened repeatedly to sue us. We are sure we will be the recipient of more threats, except we cannot read them because we have placed his email on spam block, because he has repeatedly refused our polite requests to take us off his email list.
Want to fill up your email in box? As Judge Tunis knows, just give Jack your email address. Presto, he's good for 3 on a slow day, and a dozen when he's really motivated.
See You In Court not reading emails, threats, etc., from you know who.
ELECTION UPDATE ……
Be careful what you wish for ….. In Group 18, Migna Sanchez-Llorens has long been unopposed for this open Circuit Court seat. (Migna has raised $18k and added another $40k of her own money to the campaign account). Many of you wondered why she had no opposition, others called out for an opponent to sign on.
Well, now Migna has an opponent.
Meet ELENA C. TAULER, a member of The Florida Bar for 19 years. Ms. Tauler is 51 years old and she graduated from the University of Miami School of Law. She has a solo practice and limits herself to the areas of: Family Law, Civil Litigation, Corporations, Criminal, Immigration, Real Estate, Real Property, Probate and Trusts.
Before you start commenting on her ability to be a “jack of all trades”, you may want to hear how and why she is so experienced in so many areas.
A quick check of the public records of Miami Dade County indicates that Ms. Tauler has been involved as a defendant or plaintiff in over 30 lawsuits. Most of the time she has been the defendant and the cases sort out like this:
1982 – Sued by Baptist for a debt
1982 – Sued by Finance America for a debt
1983 – Sued by Fannie Mae for Foreclosure
1983 – Sued by Sears for a debt
1983 – Sued by Southeast Bank for a debt
1986 – Divorce proceeding with her husband Antonio Tauler
1990 – Sued by Review Publications for a debt
1990 – Sued by Reed Somberg for a debt
1991 – Sued by Dept. of Education for a debt
1992 – DV Restraining Order filed against her ex law partner Calvin Fox
1993 – Sued by West Publishing for a debt
1994 – Sued by Granada Insurance for Foreclosure
1995 – Sued by BRM Engineering for a debt
1995 – Sued by Univ. Miami for a debt
1996 – Sued by Computer Crisis for a debt
1996 – Sued by Accurate Reporting for a debt
1996 – Sued by Taylor & Jonovic for a debt
1999 – Sued by Fed-Ex for a debt
2000 – Sued by Bank of NY for Foreclosure
2007 – Sued by Doral Estates for Foreclosure
There is more you should know.
On November 3, 1998, The Florida Bar filed a Complaint against Ms. Tauler moving for her DISBARMENT from the practice of law. The case went to the Florida Supreme Court and she was represented by attorney Scott Sakin.
The allegations were rather serious. Ms. Tauler was accused of taking over $50,000 from her Trust Account and using the money for personal and business obligations. This offense normally results in Disbarment. The referee, however, recommended a three (3) year Suspension; no doubt due to the fine work by Mr. Sakin. (Those who know Scott know how great an attorney he is).
The case went to the Florida Supreme Court. And in a 5-2 opinion, the Court upheld the recommendation of the referee, went against the wishes of The Florida Bar, and approved the 3 year SUSPENSION. The opinion is at 775 So.2d 944.
There are a bevy of facts that speak to the cause for the taking of the money. It appears that Tauler’s second husband, (she got remarried in 1994 to Dr. Joaquin E. Tomas), had back surgery and, as a result, lost his surgical oncology practice and caused their home to go into Foreclosure (see 2000 Bank of NY above). The Doc went schizoid on Tauler and she finally got to the breaking point. She was trying to run a law practice, raise five children (two from her marriage to Tauler and three more with Tomas) and she took the money out of the Trust Account.
To her credit, she never denied anything. The Referee and, ultimately the Supreme Court, gave her the benefit of the doubt, finding that she was going through ‘personal and emotional problems, had a positive character and reputation, made a timely good faith restitution effort, did full and free disclosure and showed remorse.’
On December 9, 1998, Tauler was suspended for three years and ordered to pay $3,426.38. After that time, upon reinstatement, she would be on Probation for one year with special conditions.
On February 21, 2002, Tauler filed a Petition for Reinstatement. In October of the same year, she voluntarily withdrew the Petition and paid costs in the amount of $2,290.24.
On September 8, 2003, she again filed her Petition For Reinstatement. The Court GRANTED her Petition and she got her ticket back on April 23, 2004. She paid additional costs in the amount of $1,783.28.
She did have one other contact with The Florida Bar. In 1988 and 1989 when attempting to first get licensed, The Florida Board of Bar Examiners opened an investigation. That investigation was eventually closed and no action was taken. It is unknown what the basis of that investigation was?
So now the voters of Miami Dade County get to decide whether Ms. Tauler is qualified to wear the robes of a Circuit Court Judge. There can be no doubt that she probably has more experience than most of the other candidates that we see filing these days. She has been in nearly every courtroom in the County, in nearly every arena of practice.
What do our readers think? Is Tauler qualified? Does the Suspension “disqualify” her in your minds? Are you bothered by the debt history and what that might say about her character?
As Rumpole likes to say …. Have at it ……
CAPTAIN OUT ……
Wednesday, April 23, 2008
...AND THROW AWAY THE KEY
The US has 70& of the earth's lawyers (most of them waiting in line to get into the REGJB).
And the US has 25% of the earth's prisoners.
Those are the statistics in this startling article in the NY Times:
Here are some other highlights:
China- that bastion of godless communism with no respect for individual rights, has four times the population of the US, and one million less prisoners (2.6 million versus 1.6 million).
1 in 100 American adults are locked away in prison.
From the Times article:
It used to be that Europeans came to the United States to study its prison systems. They came away impressed.
“In no country is criminal justice administered with more mildness than in the United States,” Alexis de Tocqueville, who toured American penitentiaries in 1831, wrote in “Democracy in America.”
“Far from serving as a model for the world, contemporary America is viewed with horror,” James Q. Whitman, a specialist in comparative law at Yale, wrote last year in Social Research. “Certainly there are no European governments sending delegations to learn from us about how to manage prisons.”
The nation’s relatively high violent crime rate, partly driven by the much easier availability of guns here, helps explain the number of people in American prisons.
Rumpole says: For shame. And lets make sure we keep spending money making sure everyone who wants a gun gets one.
Here at home the State Attorneys Office is doing its part by seeking more jail sentences in county court and imposing the "trial tax" for those imprudent enough to actually take depositions, file motions, go to trial, and do all the other reprehensible things that the constitution (but NOT Kathy Rundle) gives them the right to do.
See You In Court, doing our small part to keep those numbers low.
PS. County Court lawyers- I have received your emails by the dozens today and I am acting on them in an appropriate manner. Please give me a day or two to sort this out.
Tuesday, April 22, 2008
The Herald article by you know who is HERE
Speaking of North of the Border, the Broward Blog has the details on Judge Geoffrey Cohen dashing from the bench and assisting the courtroom deputies in subduing an unruly tough.
Meanwhile in Naples, Circuit Judge Fred Hardt was caught making faces at the jury as a defense attorney gave an opening statement. The Judge eventually granted a mistrial, but somehow four minutes of tape recording the pertinent portion has been erased. The reporter responsible for the recording, a Ms. Rosemary Woods, has not commented on the "gap".
The Naples News article is below.
Rumpole suggests that the Judges in Naples get one of those fancy computer systems that our Judges have here. Then, instead of making faces, the Judges in Naples could do what our Judges do here- send emails to each other mocking the attorneys in their courtrooms.
Here's another reason for those of us who stalk the halls of the REGJB to stay out of Federal Court: Mold. The Herald reports today that the mold problem in the Old Courthouse is worse than has been reported before.
By the time most of you read this on Wednesday Senator Clinton will have been declared the winner of the Pennsylvania primary.
What does that mean? A contested convention. Something to do during the summer besides watching re-runs.
See You In Court, where having a judge make faces during our opening statements has long been one of the things we enjoy most about trying cases.
Monday, April 21, 2008
PROBLEMS AND SOLUTIONS
10:30, people are not anonymous because of your reasons on THIS blog. They are anonymous because they don't want to be trashed just because someone sees their name. It doesn't matter what people say. If John Doe says "it's Monday," the next 5 responses are that John Doe cant try a case, something about their past, something about their distant past, or something untrue that just sounds juicy.
Rumpole responds: You are entirely correct. We are committed to changing that. People who post and sign their names will be protected from the slew of follow-up posts trashing them. We promise. Give us a try. We have decided more censorship in this area is a good thing.
Rumpole you shall be forgiven.
The Holy Father
Rumpole says: see?
WOOPS... Here's a problem you don't see very often:
Something happened with the First District Court of Appeal.
First, the First denied an appeal by Allstate.
And then, as the Insurance Commissioner was giving a press conference and accepting accolades, comes this terse missive by the First: The Order "was issued in clerical error."
The order was withdrawn, and we await further explanation.
The Herald article is HERE
Sunday, April 20, 2008
Maybe the legislature can devote time and money to a "how to spell the river in our state song" program.
Very quietly there is a revolution going on North of the Border as more sitting judges have received opposition this year than any time in recent memory. We don’t know most of the Judges or candidates for that matter, but check out the Broward Blog for the latest happenings.
The Federal Blog had “gavel to gavel coverage” of the second hung jury in the Liberty Six trial. David Markus posited the question of how many juries unable to make a decision does it take for the Government to recognize that they do not possess proof beyond a reasonable doubt?
Just for the fun of it, and we will award a valuable prize, email us your predictions for the top ten picks in this Saturday’s NFL draft. We will post ours by next Friday.
Over on the Supreme Court Blog SCOTUS
they are examining the extent of appellate review for convictions on military trials at Guantanamo.
Here is our question: if the next president closes Guantanamo down, where do they send these guys? Do they just spread them out over the entire federal prison system?
The SCOTUS blog also has this little snippet:
On Monday, the Court is scheduled to hear argument in Sprint Communications v. APCC Services (07-552), involving Article III standing in a dispute over pay phone fees...
Query: how did a “pay phone/Article III” dispute get past the “Original Intent” gang of Thomas, Scalia and Alito” and make it on to the docket? We mean, phones were free in 1796 right?
For those of you that care (and we don’t) Swanee River will remain the our State’s song. The Herald has all the details here on the new SWANEE RIVER .
Apparently the Legislature is going to keep the song, but update the lyrics. Yup, now they’re writing songs instead of laws in Tallahassee, which if you think about the spread of minimum mandatory sentences lately, is not necessarily a bad thing.
Nice to know our elected politicians in Tallahassee are working on the serious problems. The cut in funds for stupid things like Emergency Room visits at Miami Children’s Hospital or home health care for the elderly. Those problems can wait until we resolve these song issues.
And word reaches us from the Sun Sentinel that a top trial lawyer in the West Palm Beach State Attorneys Office has resigned to go into private practice. Patrick McKamey resigned citing the effects on his office of the State wide budget cuts that are about to go into effect. But, those same lawmakers who passed the budget are re-writing Swanee River, so things can’t be so bad right?
See You In Court...."Way down upon the Swanee River..."
Saturday, April 19, 2008
MEMBER'S ONLY-NOT YET
What does this mean?
If you already have a Google Account, and AOL account, or one of several other accounts, click above to see, you will have to enter that account to post a comment.
Anonymous comments: We believe anonymous comments serve a purpose. When a Judge habitually shows up late, or acts improperly in court, the litigants cannot always openly raise the issue for discussion for obvious reasons. Therefore, if a problem arises, there have been times when anonymous comments on the blog have helped raise and then resolve the issue.
However, before we take that drastic step, we are going to try something else first: we will now screen comments more carefully, and we will not always announce when we are not posting a comment.
Call someone a jerk or attack their ethics, and unless you are willing to do so using your real name and have information to support your charge, we will not post the comments. Basically, if you want to make sure a comment is published, use your name from an Open ID account.
Censorship? You bet. Our blog. Our rules.
However, we will NOT censor based on political or ideological beliefs, merely on courtsey and decency.
You can still advocate for the presidential candidate or judicial candidiate of your choice, and we promise not to censor those comments.
How will you know for sure? You won't. This is the price we all pay for the level of mean and nasty comments that a small minority of readers have infected the blog with.
Write your comment and see. We hopes this brings back readers who used to comment and write their names. All we can say is give us a chance. We will work hard not to let you down.
Kindly act accordingly.
See You In Court.
ps. Our apologies to Judge Mills-Francis. We could not post your picture yesterday as the Blogger picture function went, to use a technical computer term, "kablooey". Blogger is working on resolving this problem.
Friday, April 18, 2008
JUDGE KAREN MILLS FRANCIS
Today was her last day in court as she retires with a Sony Development deal firmly in hand for a Television show. Although we hardly knew her, we hear that this could not have happened to a nicer person.
We wish her well.
And a little bird whispered in our ear that it was none other than Television Judge David Young who recommended Judge Mills-Francis for an audition.
Tip of the blogger's hat to BLOGGING BLACK IN MIAMI for the great BIO on the Judge.
College in Maine. Law School in Florida. Former PD. Guardian Ad Litem. Certified Foster Parent. And a Judge with a large dose of common sense and a great sense of humor from what we have seen.
According to DUI and County Court lawyers who have emailed us, she is going to be missed.
Former DUI defense whiz Judge Joe Fernandez takes over her division starting Monday.
Thursday, April 17, 2008
SPRING IS IN THE AIR
Easter has come and gone. The Jewish holiday of Passover approaches.
Children are on spring break; flowers are blooming; love is in the air.
The Pope is using this season of joy and renewal to visit the United States.
Yesterday the United States Supreme Court approved the use of lethal injections as a means of executing anyone Dick Cheney doesn't agree with.
With alacrity not seen in Florida Government since the race to sue the tobacco companies, the Florida Attorney General barely finished reading the opinion from the Supreme Court when he began to schedule executions.
NPR reported this week that the top 5 countries who execute people are:
China: About 600 have been verified for last year, but Amnesty International believes the number could approach 5,000.
And Texas (with the rest of the United States tagging along.)
Ahhh.... the company we as a nation keep. Nothing like having our legal system right up there with China and Saudi Arabia's. The pride the Department Of Justice and prosecutors all over the nation must feel now they they have the green light to do their level best to compete with China.
After all trade and energy should not be the only areas we compete with the Chinese.
To paraphrase Justice Thomas's concurring opinion: "kill em all, let the good lord sort em out."
Tuesday, April 15, 2008
JIM DEMILES RESPONDS
While I am wallowing in self pity, let me make one other remark: There are plenty of comments about what happened in that courtroom on the blog. Somehow, when an anonymous person comments that “so and so is a jerk” it somehow gets translated to “Did you hear that Rumpole called someone a jerk on his blog?” One of the things that is really getting to me is that while this blog tries to provide an area or outlet if you will for discussion about our courthouse, I get tagged with every obnoxious comment, and maybe I’m thin skinned but it bothers me because I try (but as we have seen, I do not always succeed) to be fair in my comments.
Without further ado:
Jim DeMiles here. Please allow me to introduce myself and explain my background and what really happened in Court. These words are mine, not those of the SAO, and are not approved by the SAO, so please don't attack anyone else for these words except me. At first I was called "stupid" and an "idiot." Soon afterwards, the names were elevated to "racist" and "bigot." Those terms are words of hatred, and they do not define me; I feel compelled to set the record straight, so please allow me to set the record straight. I am not a racist, and I am not a bigot, because I too know how harsh the repercussions of bigotry can be. Although I am "white" as I have been labeled based on my physical appearance, I am actually an Italian-American, the son of a mother who moved here from Italy as an 11 year-old girl. When she first moved to Boston, she lived in a single house with her parents and 9 brothers and sisters. In the early 70's a rash of immigrants moved here from Italy. As a result, many of them came "with out papers." My mother, her brothers and sisters, all 9 of them, packed into a single house, were unfairly picked on by bigots as children. They were called "WOPS," a terrible and derogatory word meaning "with out papers," used to degrade and humiliate the Italians who relocated to America and who weren't as affluent as some of those people who picked on and abused them.
I am not a racist, or a bigot, because I have learned from my relatives first-hand how terrible the actions of bigots and racists can be.
With that said, I turn to the trial, which occurred last week. The courtroom is completely empty, save two ASAs, two PDs, the Court, and courtroom personnel. We are not yet on the record, and I am preparing to do my closing argument. In walks an APD and his beautiful son. Intentionally or not, and I have no reason to believe intentional, they sit right behind the defendant (second row, as required by DOC, because the defendant was in custody). At this point, I object, literally inquiring who is this child and why he is sitting directly behind the defendant. Ask the APDs, they’ll tell you.
Soon thereafter, the court reporter informed us that we were not yet on the record. We immediately went on the record and I stated (as quoted word-for-word from the transcript) "If it's the defendant's child I have no objection." I never made a motion to exclude any child from the courtroom. I never said another word for the remainder of the short-lived hearing, but it was my objection that started it all.
Others have spun the incident differently, or simply reacted without knowing all of the facts, please, check the transcript, I have a copy already.
I have tried around twenty cases in the Circuit Courts, I've had family of the defendant present in court for past cases; however, I had never before been presented with this situation, empty courtroom, young child who sits behind the defendant. If the child was black, white, Hispanic, Asian, or purple, I would have made the same objection and made the same inquiry: who is this child and why is he sitting behind the defendant.
Please check the transcript if you feel that you need to, because it will show that I go on to say that "If it's the defendant's child I have no objection." If it is not the defendant's child, then a jury may be mislead into thinking that it is. The deception is not deception caused by the color of the child’s skin, i.e. that the defendant and the child were both African-American, but by the mere presence of a child seated near the defendant.
Some have speculated that the objection was in response to the APD’s conduct in past cases, this is not true either. The APD in trial is an excellent attorney and a good man. However, innocent and unintentional conduct can also be misleading and deceiving to the jury, because it too conveys a message to them that isn’t true. This is why I stated "If it's the defendant's child I have no objection." If it was the defendant’s child there was nothing for the jury to be mislead about.
In the robbery trial last week, neither the APD in trial nor the APD who brought his son into the courtroom and sat near the defendant did anything improper. I didn’t think that the APD brought his son to mislead the jury, but, that doesn’t mean that the jury cannot be innocently but mistakenly be mislead by them being seated there, so close to the defendant.
Many attorneys have approached me since the posts began, one friend, a defense attorney, told me about a homicide trial where a number of women sat weeping in the front row of the gallery throughout the trial. The attorney informed me that she made a motion to move the women to another spot in the courtroom because she was afraid that the women may prejudice her client.
I merely inquired to see whether things were a fair representation of what was really going on, an empty courtroom filled with a few spectators, one of which was a young child. I made the objection and made the inquiry, and since then, the Herald has got the story wrong, and the blog has seemingly turned into an avalanche of hatred.
I did apologize to the APD who brought his child into the courtroom, not because I believe I intentionally did anything wrong, but because my objection and inquiry began the process that ended with his son being removed. For that and that alone, although I thought my objection proper, I was truly sorry. I hope that I have shed some light on this situation. So please, I am not a racist, and I am not a bigot. It puts knots in my stomach that I even have to type those words. I’m a human being, who loves his job, takes it very seriously, and tries to be fair and honest in his position every day.
Bless you Mr. DeMiles, you have our confidence in your performance, and our sympathy for the way it has been misconstrued. (A little trivia- what late great Justice Building Judge used to respond to objections with "bless your soul"?)
I noticed today that it has been exactly 5 years since the death of Gemma Cosentino. Amazing how time flies.For those of you that did not know her, she was a fantastic attorney and, more importantly, she was an incredibly warm and caring person who brightened every room she walked into. She died at the young age of 48.She will continue to be sorely missed.
Cap Out ....
Rumpole remembers Gemma as a wonderful public defender. A beautiful person inside and out. What a tragedy her death was.
Monday, April 14, 2008
THE OTHER SIDE OF THE COURTROOM
I’m a prosecutor. (I said this is pretend). I’ve been a lawyer for 3 years. I’ve tried a bunch of cases and now I have a trafficking case with a 25 year minimum mandatory. The drugs on the defendant were in a prescription bottle in the name of his girlfriend, and his girlfriend is sick.
His story doesn’t sound right, and he’s got some petty priors. I’m suspicious and based on the facts of the case he may have been selling his girlfriend’s drugs for money.
I talk with some people in my office and I offer 7 years. The defense says “no dice.” A few months go by, and I offer five years. “No dice”
Trial approaches and I’m concerned, so I discuss the case with some senior prosecutors and offer 3 ½ years. “No dice.”
Now the case proceeds to trial and the Herald quotes me as saying the legislator authorized the penalty and I’m just doing my job. A furor erupts and here we are.
According to some prosecutors, this may have been the scenario in the case we have been discussing, however I HAVE MADE UP THE PLEA OFFER NUMBERS FOR THE PURPOSES OF DISCUSSION. No one should place any weight in the possible plea offers I have speculated about here. I have no way of knowing if I am even close to what was discussed between the parties.
Looking at this from another angle, the issue may have been “what was the prosecutor to do?”
He does not believe the defendant is innocent.
He does not believe the 25 year minimum mandatory penalty is just in this case, and within the bounds of what his office has authorized, he has tried to settle the case.
The quote in Herald makes him look like an uncaring bureaucrat, and nothing could be further from the truth.
Rumpole says there are several solutions to his problem, starting with re-charging the Defendant with attempted trafficking. It is a serious crime, the guidelines can still be high, but there is no 25 year minimum mandatory sentence. But we are speaking from both experience and without a half dozen layers of supervisors sitting over us.
Does this scenario more accurately reflect what occurred before Judge Scola last week?
If it does, then blame still lies, in our opinion, with the State Attorneys Office.
Put simply, the charge to “do justice” outweighs even the arrogance or stupidity of a defendant or his attorney or both.
It is still wrong and an injustice to punish a defendant so severely for actions that do not merit that punishment, even where the defendant is not smart enough to resolve the case.
Because the legislature has seen fit to take drug sentencing out of the hands of (hopefully) experienced and learned Judges and place that awesome power in the hands of a 25 year old prosecutor, the prosecutor now bears the additional responsibility of making sure the punishment fits the crime. Therefore, even though this case can and probably should be seen from the other side of the courtroom, (the prosecutor’s side) the office of the SAO still bears the ultimate responsibility for explaining in this case why they insisted on trying a man for a crime where the punishment would not have been just.
See You In Court, sitting on the “other side” of the courtroom, just for the heck of it.
An ASA wrote:
Are you trying to get all of the ASAs to leave the blog, Rump? I really don't know when you changed the name of the Justice Building Blog to the Justice Building Defense Blog, but I, for one, am really tired of the SAO and ASAs being egged on by you and your brethren based upon half truths, suppositions (and you're supposed to be the sentry between the accused and the accusers, yet you don't even give the benefit of the doubt before you start accusing and convicting) and outright lies that you post (like the "facts" of the oxycodone case in your last thread that turned out to be nothing more than a bunch of crap). If you want us to not feel welcome to blog, you're doing a pretty good job of it. Hah--what if the defense gave a blog and there was nobody to respond to the attacks? You'd just be mentally masturbating with yourselves. Go ahead, have a ball. I think all ASAs should just give you what you want--a moratorium on this blog.
Rumpole replies: guilty as charged with an explanation. I run this blog and I am a defense attorney, so yes I look at things based on the agenda I have. That being said, I think I can state that I have shown a real effort to be fair to prosecutors' points of view, as well as the ability to admit an error when I am wrong. Any prosecutor is invited to post their comments on the front page. Send me an email, it can be from an email address that does not identify you, and presto, you will be able to post just like the Captain does. It is your call. I do not want you to feel unwelcome on the blog. I welcome comments of prosecutors and I do not think there has ever been one comment from an individual who identified themselves as a prosecutor that has not been posted. Prosecutors have free reign to complain about defense attorneys here. Lord knows we cause enough problems, and in many cases we should do things in a different and more professional manner. To facilitate a discussion between prosecutors and defense attorneys is one of the main reasons I started this blog. I may not always like what you say, but I respect your right to say it, and I respect your position as someone who helps protect my community.
I do object to one thing you said: I do not and never have personally written anything I know to be "an outright lie". Maybe my readers have written comments that are not true, but it is not my responsibility to fact check every comment I get about a case. I do not vouch for the accuracy of a readers comment, and nothing I have ever said or done should make anyone think otherwise.A defense attorney wrote:
Rump:Why should it be an exception in sex batt cases? Are you saying that someone accused, even falsely, in a sexual battery case should have less rights than someone accused in another type of case? is the trauma so much greater for a sex battery victim then for a grandmother who is robbed with a gun to her face? What if the sexual battery deposition is necessary to show that a victim is lying or that there are major holes in the state's case. Disappointed in you Rumpole. Thought you were above playing games of political correctness...
Rumpole replies: Because I think that we need to be sensitive to certain factors in a case. As my post points out, there are sexual battery cases where after taking other depositions the prosecution saw the problems in the case and had no problem with me deposing the victim. But in some cases, lets say a DNA case where the victim is a child, so consent is not an issue, there better be a damn good reason for putting a child through a deposition and in that limited circumstance, I believe the state is well within their rights to withdraw a plea.
But the real point of the post was that the SAO narcotics division has a policy of withdrawing plea offers when a defendant takes depositions. And I fail to see the sensitive nature of narcotics detectives in the same light as children (although their propensity to lie, is in my personal opinion, equal.
OK- cheap shot, but it has been a long day and I’m surly. )
Mr. Laeser also weighed in on our allegation that a plea offer was withdrawn in the drug trafficking trial we are all talking about. He cited to the complicated and rather obscure legal doctrine of “BULLSHIT”. Our response is in the comments section.
Anyway, we try our best. “Sometimes wrong, never in doubt”
as our law school professor used to say.
See You In Court, dodging flack.
Sunday, April 13, 2008
We have raised this issue to the FACDL and received a shrug (figuratively) in reply.
Something needs to be done. Taking depositions and filing motions to suppress are the job of a defense attorney. We have seen in this County many many examples of corruption by police officers. It was not too long ago that some officers were arrested for lying in a drug case to super attorney Lynn Overman (who still remains banned from the PDs office).
And yet, this insidious policy of withdrawing plea offers after motions are filed, or depos taken, continues. It amounts to nothing more than bullying tactics (something we were accused of just last Friday evening). There is only one way to deal with a bully, and that is confront them.
We advise lawyers to make use of the record. When a prosecutor threatens your client with an enhanced plea outside of court, demand to go back into court and put it on the record that the prosecution is punishing your client for you doing your job. Confirm the threats with a letter. Publicize it on this blog. Let the prosecutors explain why they are bullying and punishing your clients for exercising their rights under the Florida and US Constitution. Eventually an appellate court will weigh in on the matter and refer the prosecutor to the Bar.
Now before we start hearing from the sex battery prosecutors, there are of course reasonable exceptions. Plea offers should be withdrawn or enhanced if the victim of a sexual assault is deposed or if a child victim is deposed. But even in those circumstances there should not be a blanket policy. All cases are different. And if attorneys work together in identifying the weak areas of cases, there should be no problem. There are cases we have handled where after diligent defense work reasonable prosecutors agreed there was ample cause to depose the complaining witness, and they did not threaten our clients if we proceeded. And there are cases we have handled where our clients were clearly trying to use us and the discovery process to demean the victim, and the prosecutors responded appropriately.
Those cases remain the exception. The main issue is what we perceive as the bullying tactics of the State Attorneys Office. It starts in County Court where the prosecutors “enhance” plea offers (read: punish defendants) for setting a case for trial. And it continues in felonies where we well know the “policy” of the chief of the narcotics division whose prosecutors who routinely threaten defendants with increased plea offers when their attorneys take depositions.
Enough is enough. We must cast the light of day on these tactics.
We would like to hear from prosecutors and defense attorneys on this issue. (You Judges stay safely out of the way on this one; you have enough on your hands with prosecutors trying to ban children from court rooms to have to deal with a complicated issue like this.)
See You In Court.
Saturday, April 12, 2008
Picture the following:
Arthur and his son promptly get up and leave Judge Butchko's court. Lowe was left to fend for himself with 'only' his attorney by his side - they wouldn't be able to use "juror sympathy" - by having Marquis pose as the child of poor ol' Dondrick.
In a letter to the Miami Herald, Arthur Jones stated: "even if my son was the defendant's son, there are reasons both legal and logical which he be allowed to stay in the courtroom". "Her order's precedence would be that no African-American child is allowed in the courtroom during the trial of an African-American defendant".
Sometime thereafter, a bright sign started flashing in Butchko's chambers. It said. "Go to UM Law School and take the Con Law class". "Then read the constitution". Or, at least I hope it did. The Herald reports, that the Judge did apologize in front of a packed courtroom to Marquis, his father and several APD's that work with Mr. Jones. "When I found out your feelings were hurt, (she said to nine year old Marquis), and that I made you feel unwelcome here, I felt terrible". "I'm very sensitive to all kinds of diversity conscious issues." Obviously, Butchko had had an early morning breakfast with her mentor, Judge Rothenberg, and the elder jurist made her see the light.
People, this "story" is amazing - mostly because it is true. That it happened in 2008, a few days removed from the 40th Anniversary of the assassination of Martin Luther King, Jr., speaks volumes about how far we still have to go before the courtrooms of America and the criminal justice system can truly be called a fair and open place where we seek justice for all citizens, regardless of their race.
Oh yeah, by the way, Lowe was acquitted of the armed robbery charges, without any help from little Marquis.
CAPTAIN OUT ............
Friday, April 11, 2008
JUST FOLLOWING ORDERS
We have withdrawn our previous post on this subject and herewith substitute the following:
A man' s life was at stake. He was prosecuted for a crime that carried a 25 year mandatory prison sentence if convicted.
The SAO's response to this case is that since the legislature wrote a law that can be applied to this factual scenario, that's good enough for them. No analysis of justice, or fairness, or proportionality. No clear thought given to what was at stake. No recognition that a drug trafficking law is clearly meant to apply to individuals who traffic in drugs, meaning that they possess a controlled substance with the intent to distribute them at some later time.
Just because a law CAN be applied, does that mean it should be applied? That is the question the SAO will not address.
Does the SAO really believe the Florida Legislature wanted the police to hunt down every individual who transports a prescribed controlled substance when the person transporting the drug is not the person who was proscribed the drug?
What needs to be addressed here is WHAT IF THE PROSECUTION WON? Would anyone in their right mind believe justice in the form of a 25 year mandatory prison sentence was appropriate?
We can accept and debate with those who argue "yes".
What we cannot accept are the apologists who aver that answering that question is not their job, especially when the apologist in question is the prosecutor.A prosecutor has a DUTY to seek justice, not to stretch every law to its conceivable limit. That is what this case is about, and that is what troubles us so much.
Apparently the SAO has recruited a class of prosecutors who are perfectly happy not to think for themselves and to send people to prison who don't belong in prison, so long as they have been ordered to do so.
In case you have ever wondered, this is why we have defense attorneys in this country.
See You In Court, thoroughly disgusted with the Dade SAO.
PS. We edited this post because while the "just following orders" explanation is very troubling, and obviously brings to mind Nazi Germany, our previous post was demeaning to the Holocaust, and beyond the bounds of propriety for arguing this issue, and that was wrong. We apologize to the prosecutors involved in this case and to anyone and everyone affected by the Holocaust.
Readers put trust in us to run this thing right. Every now and then we really get something wrong. This was one of those times.
Wednesday, April 09, 2008
A TRAFFICKING STORY
UPDATED WITH LINK TO THE CURRENT HERALD ARTICLE
further bulletins as news breaks.
Another example of Justice Building Justice, as our intrepid Herald reporter Oh Susannah Nesmith, (back from an editing stint) reports on the trial of Joaquin Decantor for trafficking drugs.
The article is
The defense: his car broke down and before he walked home he grabbed his girlfriend’s prescription medicine to take home to her.
The penalty: A 25 year prison minimum mandatory.
If the defense facts are true- if this man was arrested and charged while having his girlfriend’s prescription on him as he walked home, the SAO and every member therein should hang their heads in shame. The prosecutor should resign, and Kathy Fernandle should be replaced. IF the facts are true.
To subject a human being in this scenario to a quarter century of prison on these set of facts bespeaks of a prosecutor’s office so out of control, so out of touch with reality, so afraid of their own shadow, so unable to do justice, that Janet Reno’s picture should be removed from their lobby. Because Ms. Reno would NEVER EVER allow a case like this to be filed, much less tried.
IF the facts are true.
Let's hope the PD trying the case will be getting one of those "VICTORY" emails from our intrepid FACDL Miami Chapter president Barry Wax.
See You In Court.
(careful readers will note I edited the last paragraph because I split an infinitive, which is a no-no.)
Tuesday, April 08, 2008
FREE AT LAST
FREE AT LAST
THANK GOOGLE ALMIGHTY
WE'RE FREE AT LAST.
For those of you suspicious of Rumpole, you can click below to see what froze our blog.
The day we were most frustrated about not being able to post was the day of the 40th anniversary of the assassination of Dr. King. We recall the words of Senator Robert Kennedy. Scheduled to speak to a crowd in a largely black neighborhood, the crowd was not aware that Dr. King had been assassinated. The police were concerned and refused to accompany Robert Kennedy into the neighborhood. There had already been riots across the land. Kennedy went into that neighborhood virtually alone, and speaking from the heart and without notes, reminded the crowd that his own brother had been assassinated just a few years before by a white man as well. Robert Kennedy calmed Indianapolis, Indiana, and showed just what an amazing man he was. There were riots across the nation, but not in Indianapolis that night.
It was in many ways, his finest hour.
Even in our sleep
pain which cannot forget
falls drop by drop upon on the heart
until in our own despair
against our will
comes wisdom through the grace of God.
Robert Kennedy, quoting the poet Aeschylus; April 4, 1968.
Click HERE for the You Tube video of Bobby Kennedy speaking to the crowd.
Right when the video starts before you see anything, you hear Bobby Kennedy asking an aide "do they know about Martin Luther King?"
We watch this video and listen to those words and we can't help but be overcome by sadness. These are words of a true leader. It's 1968. The worst of Vietnam is still ahead of us. You can't help but feel "What might have been" had Bobby Kennedy not been gunned down two months later.
Anyway, it's good to be back.
See you in Court.
Tuesday, April 01, 2008
I know many blog readers believed that I was running a prank for April Fools day. Did it ever occur to anyone that I was the victim of an April Fools prank?
I have known for many months that someone was trying various combinations of passwords to get into the blog. I was a little too confident in my BTOT password. In retrospect I have bandied the "think outside the box" clue a little too much and today I paid the price for my hubris.
Everything on this blog today, including the last post by "Google Administrator" suspending the blog, was and is a fake.
During the time the blog was taken over there were comments that were made that violated the rules I have for this blog. I have reviewed the comments today and removed the offending ones. However, if I missed one, please let me know immediately. To those individuals who had their personal appearance ridiculed, please accept my apologies.
I have learned more about passwords and internet security today then I ever wanted to know. There are a number of random password generators on the web, and I can assure you I will be using one frequently to make sure something like this never happens again.
What happened today is part of blog history, so while I have removed the offending comments, I will not remove the posts.
The individual destroyed the blog poll about who should be the next PD and also removed the picture that accompanied my comments. I will search for a new Rumpole picture. But other than that, things should remain the same.
See You In Court.
THIS BLOG HAS BEEN SUSPENDED
PAY ME OR I WILL DELETE THIS STUPID BLOG
RUMPOLE. EMAIL ME AND PAY ME OR I WILL BLOW THIS BLOG TO SMITHEREENS.
I HACKED RUMPOLE'S BLOG
I tried to hack the blog for months and months and months, and one day, looking at the sign in, using rumpole’s email as a sign in, I started writing “think outside the box” as the password.
It couldn’t be this simple, could it? Well, no, but then one night recently it hit me: TOTB as the password!!!!! I knew I had Rumpole…..but alas that did not work. I was crushed, and then last night, almost as an afterthought, I typed in BTOT, T(hink) O(utside) T(he) B(ox) backwards, and shangra la! I was in.
The first thing I did was change the password, so Rumpole is locked out.
I run the blog. I rule! Any suggestions?
I’m sorry to report there is nothing in here that even hints at his identity. But I run the blog and I have the email address to boot!!! So Rumpole, if you want your lousy little blog back, email me and I’ll consider your offers.
See ya in court Rumpy!!! HAHAHAHAHAHAHAHA.
The Blog is mine, all mine!!!!