Monday, December 15, 2008



  A CRAZY VERDICT: back from vacation and fully rested, ace Herald scribe Susannah Nesmith reports on the RARE  NGI (Not guilty insanity) verdict on a double murder case before Judge Adrien last week. 
(The title of the post links to the article.) 

Veteran Prosecutor David Waksman for the state and G.P. Della Fera for the defense.  We take Ms. Nesmith to task for reporting that the verdict means that the defendant could be released from a mental hospital in a few years. Possible but extremely unlikely. And that type of reporting(and the "sour grape" like statements from Waksman that the defendant will be out in a few years and taking street drugs)  leads to the Hollywood like hysteria that makes verdicts like this a near impossibility.  
(For a good defense of Mr. Waksman, and a swift and strong rebuttal of Rumpole's cheap "sour grapes" shot, see Scott Saul's comment in the comment section of this post.) 

As reported in the article, this type of verdict is extremely rare. The reason is that media hype has the general public believing that this type of outcome is the normal occurrence rather than the rare event that it is.  That in turn makes people angry and distrustful of the criminal justice system, which then makes verdicts like this- even when supported by the evidence- very difficult to achieve. 

MNF Pick below.- Update- the game went over (barely) and we won and we are now 1039 Shoes thrown at Bush up for the year. 

With the pending  appointment to the 4th DCA of one of the Judges on the short list for the Florida Supreme Court, the odds just got a little bit better for Dade Judges Emas and Freeman. 

Query: Has the Governor boxed himself into the appointment of a minority or a woman with his recent fights with the 5th DCA?  See, this is where the rubber meets the road if you're Judge Kevin Emas.  Judge Emas is very qualified for the selection and yet how would he feel if another, perhaps less qualified Judge was selected based on factors other than the ability to be a great Supreme Court Judge? And this whole discussion even casts a dark light on those female or minority candidates. I'm sure Judge Freemen  and her supporters believe that she is on the short list for no other reason than she may very well be the best choice for the spot. (And we have no information to aver otherwise). And yet,  would she feel uncomfortable ala Justice Clarence Thomas if someone criticised her selection based on anything other than her ability? 

Speaking of appointments, Caroline Kennedy of NYC has officially cast her hat into the ring for appointment to her  late Uncle Bobby's senate seat currently about to be vacated by Hillary  Clinton. The NY Times Article is here.  New York has traditionally had some wonderful and intellectually strong senators (Al D'Amato  notwithstanding). Just how would another Kennedy in the senate be viewed?  And not to be morbid, but Caroline's uncle Ted is approaching the end of a historic tenure in the Senate. 

No kidding? 

Anybody trying cases this week? How about next week or 12/29? 

See You In Court not trying any more cases this year. 

MNF: In a game that probably looked good over the summer, but is clearly a dog, the Browns go to Philly to play the streaking Eagles. The line is Philly -15 and over 39. The Eagles should win and should cover but what is easier here, covering the 15 or over 39? Probably the over 39, which we'll take for +50. 


Anonymous said...

Anybody NOT have a foamy great time at Kenny Weisman's annual foam party last Friday and the after party upstairs at prime 112?

Anonymous said...

Exclusive video of Kenny's Foam party. Look to the very top left to see the "retired judge" covered with foam throw a handful of foam at either Kenny Weisman or Sam Slom- it's hard to distinguish the two in the video.

Anonymous said...

It was Kenny, Slom was wasn't there but i see what you're talking bout.

Anonymous said...

Wat'ch you talkin bout Willis???

Anonymous said...

Somebody want to call the Shum at 10 to 5 on a blue and blah Monday?

OK. I'll do it. Shumie time. I'm outta here Willis.

Anonymous said...

G. P. Della Fera won a rare not guilty by reason of insanity verdict in the case of the man who killed his family. The judge was Peter Adrien and the prosecutor was David Waksman.

Here's the article by Oh Susannah:


Anonymous said...

What you call "sour grapes" about Waksman's statement to the Herald, I call reality and prognostication based upon years of experience. The idiots at Chatahoochee will be chomping at the bit to get rid of this guy so they can make space available for the next homicidal maniac. And when this jerkoff gets released, maybe he'll personally thank the idiotic jurors who believed the garbage his "experts" professed. What a f-ing travesty.

Anonymous said...

Waksman's comments are offensive frankly. He knows full well that the guy won't get out of the hospital unless State doctors say he is ok to be released. And we all know that shit ain't happening.
Shame on you sir.


Anonymous said...

Rump, I disagree with you.

1) David Waksman is a good guy. He is a gentleman to try a case with. That does not mean that he will not be as agressive as we are in the fight. He's not a girly man but a man's man. He is going to let off a little steam just like we do.

Anybody and everybody is entitled to a little venting and disappointment in an adverserial context. If I lose a trial, I am pissed. Even when the evidence is overwhelming and teh case is nothing but a slow guilty plea, I alwasy think that I can win and if I don't, I am mad. I have neevr lost a trial and come out calm and smiling.

Give David a break!

Hell, it was a grisly murder. You should hope that David was emotional about his case. That is where you want your tax dollars going to.

2) Ever since "Hinkley", the system is set up to dissuade jurors from a NGI.

A careful examination of the jury instruction clearly shows that wording is placed into it to give the jury the willies.

Although we all know that this defendant is going to have a "One flew over the cuckoos nest" lifetime experience, the jury instruction insinuates that maybe the defendant will be held or maybe he will not. That has to be a factor when they deliberate...the consequences of their verdict...which they may consider as a free pass.

You see, the police and prosecution know, up front, usually way before defense counsel gets involved, that there will be a mental health issue. They get their own professionals, the detective knows hows to develop the case to take the "wind out of the sails" for an inevitable insanity defense.

That is why this verdict is so miraculous. It is easy to get a NGI for some mamby pamby 3rd or 2nd degree felony but with a real bad murder, there must have been some mighty fine persuasion going on.

7:17 p.m. Dude, Never call any verdict in the Miami courtthouse a "travesty" since there are way too many good lawyers that can turn a case on it's head.

Anonymous said...


If we all wan tthe judges to go easy on us during the holidays, why do hack lawyers file NOEs and piss off the judges that are accomodating our vacations and holiday schedules?

Anonymous said...

Stop complaining about the fact that politics has intruded into actions that are intrinsically, well, political. Here is a list of judges that but for something beyond their control, would never have worn a robe.
1. Arthur Goldberg (JFK's payoff to the unions);
2. Thurgood Marshall (a payoff to the NAACP);
2. Harry Blackmun (Burger leaned on Nixon to appoint his good friend and Nixon owed Burger);
3. Scalia (Reagan wanted to appoint an Italian to secure Republican support in the northeast among blue collar Italians);
4. Clarence Thomas (Bush Sr. wanted to placate the right and keep a black on the court);
5. Souter (this was pushed hard by Sununu and Warren Rudman who Bush owed big time for getting him the NH primary win over Dole in 88) and no matter your political leanings, Souter is probably the most oddball person ever to sit on the high court. The man has never owned a TV set!
6. Ruth Ginsburg. A payoff to the feminists by Clinton.
Complaining that a judge is selected on the basis of something other than merit is like complaining that the local pizza joint smells like garlic. Unless someone out there can change human nature, we are stuck with this system the same way we are stuck with rain in the summer.

Anonymous said...

As desrving as they are, Emas and Freeman have no chance of being selected. PLEEZ... If they had a chance, the Gov would not be asking for more names under the pretext of diversity. Read the Daily Biz Review article-- folks this baby is cooked. This JNC process is a sham. The only Latino on the JNC list is removed within 2days by quickly appointing him to another judge position. The Gov then says he wants more names claiming he needs diversity, which he already had on the original list the JNC had sent him. Next, they tried to add new names in a private phone call to a list that had already been finalized. After 1 or 2 JNC members complained that this can't be done in private, now they will have a public call followed by a private vote, where the Gov. appointees have the votes to send the person who will be selected. There is no procedure or basis for doing any of this. These folks make up the rules as they go along while good and deserving judges are set up for bogus interviews.

Anonymous said...

To ScottAfrica at 7:44

I'm guessing you've been at REG less than 10 years. Probably 5 or less and feeling good, since that makes you feel like a veteran.

We all have seen NGIs walk free. Not immediately, but the few year prediction is not far off, depending on the client. I've seen double murderers walk in that time and live at an ALF.

I've seen NGIs go for court monitoring for decades, sometimes with one person, the ASA, APD or private as the only one knowing the long history. Usually judges aren't there for over ten years.

Anonymous said...

How about that fiesta at Denaro's house. I heard it rocked....but he invited federal prosecutors to check out his diggs. Wuz up with dat!

Rumpole said...

I did not post a rather vicious and personal comment about the prosecutor. You can do better than that.

Anonymous said...

that is nothing short of an attempt to make attentive jurors feel badly about their verdict, and to taint future jurors. very sad, and typical of prosecuotrs, which is why they deserve such little respect. one must lose graciously. scott saul is a buffoon and would not know the first thing about a trial.

Anonymous said...

9:10PM. To the extent that your argument implies that the judges on your list were unqualified, the only federal judge you were correct on was Souter. Marshall was lead counsel on Brown v. Board (which changed the face of constitutional litigation, and fully realized Cardozo's vision of law as a tool of social reform) and later was Solicitor General of the US ... a position charged with arguing cases before the USSC. He was perfectly qualified.

Blackmun was on the 8th Cir. (I think) for over a decade. What better qualification (other than maybe the DC Cir. Ct. App.)? Also, Blackmun filled that seat after two other Nixon nominations failed. Nixon's pick certainly was not in the bag.

Scalia. Say what you will about him (and I will), but he was eminently qualified for the position. A lawyer in the Nixon and Ford administrations; Con Law prof at Chicago; about 5 years on the DC Cir. Ct. App. He got there on the merits.

Ginsburg. This one isn't even close. Taught at Columbia. Head of litigation for the ACLU; argued a number of cases before the USSC. Then, on the US Cir. Ct. of Apps. for 13 years.

I agree with you that politics likely helped them get the job. But, their qualifications got them 99% of the way there. To say that they "never would have worn a robe" is ridiculous.

Anonymous said...

Does Scott Saul EVER post anything but defenses of his freinds... or people he wants to give him better pleas?

Anonymous said...

Well, you've finally done it Rumpole. You've run me off.

Just kidding, but I did want to let everyone know I'm going to be moving off the courthouse beat in the next few weeks. I'm moving to a job working on multimedia projects, and I'll be doing some editing. I asked for this assignment and I'm glad my bosses chose me for it.

The new courts reporter hasn't been selected yet, so I will still be in the courthouse for a few weeks, at least through the end of the year. I'll introduce the next reporter around.

Thanks to everyone who has helped me over the past three years. The Justice Building has been called the best piece of real estate in journalism and it's certainly a fascinating place to be a reporter. It's also full of people who have been very generous with their time to help me understand it. I'll miss the beat.

My contact information will stay the same and I will still be writing some, so I hope everyone will stay in touch.

Susannah Nesmith
Miami Herald

Rumpole said...

11:41- I've seen Scott try a case and you would be hard pressed to find a better trial lawyer. Why don't you print your name and lets see if I know you and your trial skills?

or are you just a chicken who likes to attack people anonymously?

Anonymous said...

I was not the "Saul Mauler," but confess to attacking anonymously....it is fun and can be quite entertaining on a rainy day.

I miss the days of non-moderation.

P.S. Don Horne should not be in charge of the SAO.

Rumpole said...

I'LL tell you why I do not miss the days of no moderation. Despite being anonymous, and no one has really come close to guessing my identity- I am a lawyer who is in the REGJB. And sometimes something rather vicious would appear on the blog. And by happenstance- the victim of the attack would speak to me or be speaking nearby and i would hear how much that hurt them, and it would bother me that I was facilitating the attack. So I prefer moderation so that my own feelings are clear that I am not indirectly helping some coward anonymously hurt another human being. Feelings are important you know.

Anonymous said...

It amazes me that the same attorneys who run to the media at every opportunity attack Waksman for commenting on a verdict. I would hope that EVERY prosecutor and PD took their cases as seriously as Waksy does. It makes me sick that so many of my tax dollars have gone to those who really don't care about their jobs.

When I was a prosecutor, people criticized me for taking my cases personally. I thought they were nuts. These cases involve real people (victims, defendants, witnesses, etc.) and have real life implications. Trials and pleas are not academic exercises. I assure you that they're personal as hell to the people who's lives they affect.


PS----as for Scott Saul, he and I fought in court many times. Often over stupid stuff as we were both quite brash when a bit younger (yeah, Scott, you too are aging). But, he always was fair and honest to deal with and he gave a damn. I never tried a case against him (I would've loved too), but can say that he did well for his clients. That's more than many can say.

Anonymous said...

Heard L&L twins secretary was the foreperson on Delaferra jury? What was David thinking?

Anonymous said...

Rumpole, all you have to do is delete the comment when you see it. David, does it so can you.