Sunday, March 29, 2009


From Abe Laeser

I was sworn in as an Assistant State Attorney on May 2nd, 1973. It was the day after I had become a member of the Florida Bar. No other job ever seriously tempted me to leave. What I am can be found in the immortal words of Paul Simon, when he sang of the One Trick Pony: "He's just a one trick pony (that's all he is),
But he turns that trick with pride."

Prosecution has been by vocation, my avocation, and my true love for nearly 36 years. I leave this, my home, with the greatest of regret - even sorrow. As Thomas Carlyle once wrote, as if he were writing only for me: "Blessed is he who has found his work; let him ask no other blessedness." My friends, my colleagues, my compatriots in battles too numerous to mention -- all these will forever have a place in my heart.

Many have asked me about a most memorable moment. There have been many extremely similar moments that I have taken most to heart. I have had one single request - one that mercifully I have never had to carry out; yet it meant the world to me, because it spoke truth in its loudest possible voice. Fellow prosecutors, officers, defense attorneys, and even judges had made one request. The gist of it was: "If my family member should ever be murdered, could you personally prosecute the case?" This is perhaps the only legacy that will stay in my mind forever. It means too much for me to ever forget.

G-d bless you all with wisdom and courage in this special calling, as prosecutors.


Rumpole says: The above missive was an email Mr. Laeser sent to all the prosecutors at the SAO as he leaves after 36 years of dedicated service to this community. We reprint it with his permission. 

Mr. Laeser, (Abe to many) needs no introduction to the majority of people who read this blog. Chief of Major crimes when the SAO had a Major Crimes unit, he was THE prosecutor that the community turned to when the worst of tragedies struck- when a law enforcement officer was killed in the line of duty.  Along the way, as many have written, Mr. Laeser trained hundreds of prosecutors in how to investigate and prepare a case; how to do it exceptionally well; and how to do it ethically and honestly.  We really are not the one to recount all that Mr. Laeser has meant to the SAO and Miami.  Already one judge has posted a comment and we encourage all lawyers and Judges to do the same. 

We leave you with this link to a blog post The Case That Made Miami Burn, and Roy Black's recollections of doing battle with the best the Miami SAO had. 

Roy ended his comment with this:

"You know if you have tried a case against Abe Laeser you have met their best lawyer."

Rumpole says: It's worth reading what Abe Laeser had to say about trying the Alvarez case against Roy Black. Because he called it "my best case and worst loss."

And what does that mean? To us it means there is value in trying your best, no matter what the odds, and accepting the results. As we teach lawyers from time to time, rather than being bitter about the loss (blaming the judge or the jury or the client or a witness) embrace the loss and learn everything you can from it.  By doing that you will realize that losing a case is the most valuable lesson a trial lawyer can have, and it will- as Mr. Laeser has shown- make losses in the future extremely rare events. 

G-dspeed Mr. Laeser. 

Friday, March 27, 2009


Update: considering the comments, nobody cares about the new juvenile court. 

The Herald reports the approval by the Miami City Commission to build a  "new...bright, modern, safe...welcoming...and green" Juvenile Justice Courthouse downtown.  The title of the post links to the article. 

Rumpole notes: About time, but can the colour be something other than green??

The current juvenile courthouse, which we've been to about three times in twenty plus years, is a disgrace. 

Here's the real question: can the state beat the Feds and build a new courthouse in less time than it took the feds to build that new monstrosity which is still barely functioning? The bar is pretty low on this one. 

Here's a recap of the collateral estoppel argument before the SCOTUS in  Yeager  v. US. Basically, there was a mixed verdict with acquittals on some counts and a hung jury on other counts, and the government wants to re-try the defendants and punish them for not pleading guilty earlier in violation of the recently enacted "Cheney laws." 

Sorry for the lite post, but I'm a bit busy, but unlike certain federal bloggers, I can multi-task. 

See you in court. 

Wednesday, March 25, 2009


Item: New Public Defender Carlos Martinez  (Motto: "Proudly running the Dade County Public Defenders Office with help from Bennett Brummer since January 2009") has solicited the pro bono assistance of big firm civil lawyers for public defender cases. Martinez promises real trial experience in exchange for getting much needed help for clients. 

We received this comment and it is dead on and very funny:

Anonymous said:

Pro bono civil lawyer doing misdemeanor case list of things to do:

1. Send threatening demand letter to prosecutor about "ending up in court" and asking for fees upon conclusion of case.

2. Set depositions without filing a motion.

3. Go to court and walk into judge's chambers for hearing. Look for sign in sheet.

4. Follow up threatening letter with interrogatories.

5. Advise prosecutor that the depo of your client will be in your office.

Anything else?

Sunday, March 22, 2009


No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility

U.S. CONST. ART. 1, SECT 10.

In Ogden v. Saunders, 12 Wheat, 25 U.S. 213 (1827), Chief Justice John Marshal wrote in dissent on what drove the framers to write the contracts clause into the Constitution: 

The power of changing the relative situation of debtor and creditor, of interfering with contracts, a power which comes home to every man, touches the interest of all, and controls the conduct of every individual in those things which he supposes to be proper for his own exclusive management, had been used to such an excess by the state legislatures, as to break in upon the ordinary intercourse of society, and destroy all confidence between man and man. This mischief had become so great, so alarming, as not only to impair commercial intercourse and threaten the existence of credit, but to sap the morals of the people and destroy the sanctity of private faith. To guard against the continuance of the evil was an object of deep interest with all the truly wise, as well as the virtuous, of this great community, and was one of the important benefits expected from a reform of the government.

That the public bloodlust to terminate the contracts  between individuals and AIG has reached into the upper most echelon of the White House is not surprising. 

And unfortunately, as altrutist- statists are wont to do, anything and everything is up for grabs when THERE IS AN EMERGENCY. 

The clearest indication of this is the Supreme Court's holding in Home Building and Loan Assoc.  v. Blaisdell, 290 U.S. 398 (1934) in which the Supreme Court held that:

The economic interests of the State may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts.

Let us interpret that for you: Contracts are contracts, and the Constitution is the Constitution, and the Constitution forbids state interference with contracts, unless the interests of the state are overriding.  

In other words, the Constitution of the United States is not worth the paper it is written on when powerful economic interests or emergencies arise. 

Thus in Blaisdell, the court found that  1) "an emergency" existed in Minnesota.  2) The laws enacted (the suspension of the right of a creditor to foreclose on a mortgage)  addressed "a legitimate interest of society" (Altruistic collectivism).  3) The relief afforded by the law was justified by the emergency and thus the state acted properly. (Statism). 

Blaisdell has been roundly and justifiably criticized, but it is still good law. 
So is Wickard v. Filburn,  317 U.S. 111 (1942) holding a farmer could not eat the wheat he grew, and that the Federal Government had the right to say so under the commerce clause, especially when there is an ....(everybody now) EMERGENCY!!!

And that is very bad news for those people who are legitimately owed money during this emergency. That means AIG employees, real estate investors, and anyone else Obama and the Congress decide this emergency covers. And that may mean you someday.  

Let's say Florida decided there was "an emergency" and suspended payments on pensions.  For all of you who just spent the last 30 years in the REGJB and were expecting a decent retirement- ouch!
But Florida could do it. The Blaisdell opinion says so. 

So sit back and hold on to your wallets because the altruist-collectivist-statists are out in force and everything is up for grabs. 

See You in court reading old Supreme Court decisions. 

Saturday, March 21, 2009


The title of the post link's to Jay Weaver of the Herald and his article about ASA David Ranck's lawsuit against the State Attorneys Office- an office Ranck has served so well for over twenty five years. 

In 2004 Ranck was assigned to a police shooting of an unarmed teenager who was accused of committing a burglary.  Ranck didn't like what he saw and heard and he said so in his memo. 

 A police Major called the State Attorneys office and asked that Ranck be removed from the case. He wasn't "playing ball." Fully committed to the belief that "we who work here seek only justice" State Attorney Fernandez-Rundle (hereinafter "Fernandle") promptly removed Ranck from the case.  Nixon couldn't have done it any better.  See, Archibald Cox.  

When Fernandle removed Ranck from the case, Ranck wrote a memo stating that his removal created the appearance that the State Attorneys Office was not impartial in finding out the facts  of the shooting. 


Last year Ranck filed a public records request to obtain his own memo and when he received it  we posted it on this humble blog. 

And here's the DBR covering Ranck and our coverage of this contretemps in May, 2006. 

Ranck was promptly suspended without pay for a month. 

He hired counsel and sued the State Attorneys Office in Federal Court. 

And that's where things are at this point. 

Rumpole ponders:  1) memo to Jay Weaver and the Herald: if we're going to do your leg work for you (publish the memo and publish the story about Ranck) the least you can do is put the address of the blog in the article. 

2) Ranck had to file a public records request to get his own memo??? Sort of puts a new spin on when prosecutors show up in court and say they don't have their file and are not sure how long it will take to get it. 

3)  Can anyone imagine Janet Reno removing a prosecutor from a case who challenged a police officer's version of shooting an unarmed man, at the request of the officer's supervisor?

Perhaps we should all chip in an buy Fernandle a "WWJD" bracelet. 
(what would Janet do?)

Will Ranck take the stand? 
Will Fernandle take the stand?
Will Don Horn take the stand?

Stay tuned. 

Enjoy the weekend, even if it's raining a bit. 

Thursday, March 19, 2009


UPDATE: Judge Aleman did it again. Check out the Broward Blog
Appearing as a weekend bond hearing judge, Aleman was discourteous, rude, and refused to listen to an attorney who had a client stuck in the Broward County jail even though he was supposed to be released. The attorney had to call Chief Judge Tobin, who then called Judge Hurley who sits in the first appearance court during the week. Judge Hurley then had to leave his home, go to court, and sign the order releasing the client. All because Judge Aleman didn't want to listen to an attorney who needed help. 

Just how long are we going to tolerate Judge Aleman's behavior?

The title of the post links to the BBC article. 

Governor Bill Richardson of New Mexico (motto "Hey, we're a state too!") has signed into law a bill abolishing the death penalty in New Mexico. Richardson, a former supporter of the death penalty called it the most difficult decision of his career. Richardson  said that he no longer had confidence in the criminal justice system. 

You and me both Bill.  (Although our favourite federal blogger's faith in the justice system was recently restored with his blockbuster 141 count not guilty verdict.)


The House of Representatives passed a bill today imposing a 90% tax penalty on individuals who receive bonuses from companies that received more than 5 Billion dollars from the stimulus package.  The Bill essentially targets the executives of AIG. 

We have decried the AIG payments on this blog, but this is a very dangerous precedent. 

Think of it this way- If the congress can do this to a small individual group of people that the public has turned against, they can do it to you. 

When they pass the bill to impose a 90% income tax on individuals who did not support the next war,  I can guarantee you this- the Supreme Court opinion in that case will cite to the Supreme Court opinion in this case (if the law is challenged and reaches the Supreme Court) as justification for the law. 

No matter how worthy the cause, we should all be alarmed when the Congress of the United States, reacting to public outcry, passes legislation targeting a small, select group of outcasts. This nation was founded by a small, select group of outcasts, and our Constitution and our fervent belief that we are a nation of laws, means that fundamental to that concept is the protection of any minority from the tyranny of the majority. 

Unless you work for AIG. 

Or unless you belonged to the communist party in the 1950's. 

Or unless you were a black or a jew and wanted to own property on Miami Beach in the 1940's. 

Or unless you were an African  brought to these shores in chains in the 1700's and 1800's. 

So tell me, those of you applauding our Congress today, what are you going to do, and to whom are you going to turn for help, when the public bloodlust makes the Congress pass a law and they come for you? 

Wednesday, March 18, 2009


Before we get to the 3rd DCA, the Fed, as we predicted the other day,  agreed to buy about a billion dollars of US Treasury notes. The NY TImes article is here. The effect will be to lower interest rates, and give the Government treasury about a billion dollars more to spend. You see, this is a slight of hand. How does the Fed get a billion dollars to buy US Treasuries? Why it orders the treasury to print a billion dollars, which the Fed then promptly uses to buy Treasury notes, sending the billion back to a different arm of the government for it to spend on salaries and trips and spa sessions  for AIG employees. 

Can you say I...n...f...l...a...t...i...o...n?   That's what happens when countries devalue their currency by printing more of it for no good reason. 

And by the way, if you are per chance the holder of a note; if someone owes you money and is paying off the loan, when inflation hits, they will be paying you back with dollars worth considerably less than the dollars you lent them. 

Just our  government's way of saying "Capitalism? You must be joking".


Just two decisions reported this week, and one is a PCA. In the other one however,  Judge Mark King Leban gets his second posting on the Wall of Shame for denying a rule 3.850 motion summarily without attaching portions of the record to conclusively refute the allegations. 

From last week, which we neglected to report, Judge Peter Lopez joins Judge King Leban on the wall of shame for summarily denying a 3.850 motion without attaching portions of the record to refute the allegations. The decision in Redding v. State, is here. 

In JB v. State, the juvenile's adjudication for delinquency for petit theft for stealing an officers handcuffs, by running away (while in handcuffs) after the officer arrested the juvenile for trespass, was reversed.  The decision by Chief Judge Gersten noted that petit theft is a specific intent crime. While it was clear the juvenile was fleeing, it was not proved at trial that the purpose of the flight was to steal the officer's handcuffs. As CJ Gersten wryly noted at the end of the opinion: 

Actually, we are sure that J.B. would have gladly relinquished any dominion,
control, or possessory rights to the handcuffs if he only had the key to release

Who said those guys and gals at the 3rd DCA don't have a sense of humor?

See you in court. 

Tuesday, March 17, 2009


Now we're cooking. Those of you who called for the blog to step away from the intellectual and metaphysical meanderings of the philosophical basis of our economic system, will be glad to know that help has arrived from an unexpected quarter: Federal Court!!!

Yes, this is primarily the milieu of our favourite federal blogger. But unlike us, he is not anonymous and needs to go before these judges. We suffer from no such concerns. 

DRAMATIS PERSONAE: Federal District Judge William Zloch (former chief Judge the of Southern District of Florida); Federal District Judge Federico Moreno (current Chief Judge of the Southern District of Florida); The Honorable Donald Graham (next in line to the throne of Chief Judge of the Southern District of Florida.)

Our play begins as Chief Judge Fred Moreno opens his mail sometime shortly after February 9, 2009. He receives this memo (courtesy of the DBR)  from Judge Zloch wondering whether Judge Moreno would step down early as Chief Judge so that Judge Donald Graham could have a turn in the Captain's seat?

The problem for Judge Graham, as succinctly divined by Judge Zloch, is that while Graham is next in line to the throne,  certain arcane federal regulations do not allow judges to become chief judges if their term would begin after they turn 65 (or after they turn into a pumpkin at midnight.) With apparently nothing better to do than look at a calendar, Judge Zloch discovered that Judge Graham will turn 65 on December 15, 2013, while CJ Moreno's term is due to expire on June 30, 2014. If things play out the way they currently are set, Judge Graham will miss out on his turn. He will have to settle for his measly job for life, salary and pension and benefits for life, and how sad would that be? 

Apparently very sad in Judge Zloch's view. 

Calling Judge Graham a man of "tremendous moral character and courage" , Zloch cited to the precedent that Judge John Gobold, Chief Judge of the 11th Circuit, stepped down early so Judge Roney could become Chief Judge and avoid being "Grahmed out". (cf, Marbury v. Madison,  5 U.S.  137 (1803)

The strong rumor is that Judge Moreno responded thusly: "Why don't you practice what you preach? You could have stepped down early for me and you didn't."

Federal District Court Judges slugging it out. Now that's what we like to see. Almost makes Broward look civil. 

The odd part of Judge Zloch's memo ("All we are saying, is give Graham a chance") is that he saw fit to send it to not just the other Judges in the Southen District, but also to  the following individuals: Congressman Alcee Hastings (impeached as a Judge from the Southern District);  Congressman Kendrick Meek;  lawyer H.T. Smith; lawyer Johnny McCray; lawyer Perry Thurston; lawyer Larry Handfield; and others. 

Now for some reason we were left off that list. But what do every one of those individuals on that list have in common?  Hint- it's not their birthdays.

Apparently while race is not a factor for Justice Clarence Thomas in any decision, it is the deciding factor for Judge Zloch in who should become chief judge and why.

In the final analysis, this memo  is a slap in the face to Judge Graham. He has many many things to be proud of. He is a universally well respected Judge. There isn't a lawyer I know who would not put Judge Graham on the top of any list of judges they would like to try a case in front of.  Judge Graham is accomplished, bright, fair, and charitable. To debase his accomplishments by insinuating that his race played or should play any part whatsoever in his success is demeaning. 

But by all means let this not be the end of it.  Hopefully Judge Moreno's memo will be leaked, and this can end up as a special on TBS: "When Federal Judges Fight." In any event, it spared you, dear reader, another boring exposition on Ayn Rand's views on the epistemology of individual rights.



Not a large Irish contingent here in Miami. But somehow we believe people in the Bars from South Beach to Homestead will find a reason to drink. 

Where will you spend St Patrick's day? What's your favourite bar to hoist a few? And where will Rumpole be????


The Federal Open Market Committee meets today. This is the committee that sets monetary policy for the United States. One problem- Fed Chairman Bernanke has used up most of the bullets in his gun to combat the recession/depression. 

In the past, former Fed Chairman Alan (I used to be a Capitalist) Greenspan (an apropos name for today) used to lower the Fed funds rate a quarter point, wring his hands, mumble something unintelligible about keeping an eye on inflation, and the economy would come roaring back. 

Now however, the Fed funds rate is approaching zero. Banks, which got us into this mess to begin with, are making billions loaning money at 5% that they are getting for free, and still the economy is contracting and we are losing more than half a million jobs a month. 

What to do, oh what to do? 

Well, the "experts" are saying the Fed could start buying US Treasuries. That would lower interest rates even more, and free up more money for mortgages,  the reckless use of which also got us into this mess to begin with. 

When we hear experts and politicians ponder on the ways to get more money into the lending market so people can start getting mortgages again, we have to wonder where these people went to school? Enabling banks to start recklessly lending again, as a way to jump start the economy, is like a cardiologist telling a patient who just had bypass surgery,  "we have to get you back on transfats  so you can start enjoying eating again."

It's just plain dumb to want to go back to the era of everyone getting any  mortgage they want, especially when banks still have close to a  trillion dollars of worthless loans on their books. 

As they say in Hialeah, "That dog won't hunt."

Monday, March 16, 2009


Have you ever thought about the meaning of money? What exactly is it? What does it stand for? 

In Atlas Shrugged, Rand wrote the famous "Money Speech" which remains perhaps the clearest definition of what money means. I refer you to the book for the entire speech, excerpts of which I have included here. 

I would pay particular attention to her prediction of when a society is about to crumble, because if you look, you can see many of those warning signs among us today. 

“So you think that money is the root of all evil?” said Francisco d’Anconia. “Have you ever asked what is the root of money? Money is a tool of exchange, which can’t exist unless there are goods produced and men able to produce them. Money is the material shape of the principle that men who wish to deal with one another must deal by trade and give value for value. Money is not the tool of the moochers, who claim your product by tears, or of the looters, who take it from you by force. Money is made possible only by the men who produce. Is this what you consider evil?

“When you accept money as payment for your effort, you do so only on the conviction that you will exchange it for the product of the effort of others. It is not the moochers or the looters who give value to money. Not an ocean of tears nor all the guns in the world can transform those pieces of paper in your wallet into the bread you will need to survive tomorrow. Those pieces of paper, which should have been gold, are a token of honor— your claim upon the energy of the men who produce. Your wallet is your statement of hope that somewhere in the world around you there are men who will not default on that moral principle which is the root of money. Is this what you consider evil?

“Have you ever looked for the root of production? Take a look at an electric generator and dare tell yourself that it was created by the muscular effort of unthinking brutes. Try to grow a seed of wheat without the knowledge left to you by men who had to discover it for the first time. Try to obtain your food by means of nothing but physical motions—and you’ll learn that man’s mind is the root of all the goods produced and of all the wealth that has ever existed on earth.

“But you say that money is made by the strong at the expense of the weak? What strength do you mean? It is not the strength of guns or muscles. Wealth is the product of man’s capacity to think. Then is money made by the man who invents a motor at the expense of those who did not invent it? Is money made by the intelligent at the expense of the fools? By the able at the expense of the incompetent? By the ambitious at the expense of the lazy? Money is made—before it can be looted or mooched—made by the effort of every honest man, each to the extent of his ability. An honest man is one who knows that he can’t consume more than he has produce.

“To trade by means of money is the code of the men of good will.
Money rests on the axiom that every man is the owner of his mind and his effort. Money allows no power to prescribe the value of your effort except the voluntary choice of the man who is willing to trade you his effort in return. Money permits you to obtain for your goods and your labor that which they are worth to the men who buy them, but no more. Money permits no deals except those to mutual benefit by the unforced judgment of the traders. Money demands of you the recognition that men must work for their own benefit, not for their own injury, for their gain, not their loss—the recognition that they are not beasts of burden, born to carry the weight of your misery—that you must offer them values, not wounds—that the common bond among men is not the exchange of suffering, but the exchange of goods. Money demands that you sell, not your weakness to men’s stupidity, but your talent to their reason; it demands that you buy, not the shoddiest they offer, but the best that your money can find. And when men live by trade—with reason, not force, as their final arbiter—it is the best product that wins, the best performance, the man of best judgment and highest ability—and the degree of a man’s productiveness is the degree of his reward. This is the code of existence whose tool and symbol is money. Is this what you consider evil?

 Money will not serve the mind that cannot match it. Is this the reason why you call it evil?

“Money will always remain an effect and refuse to replace you as the cause. Money is the product of virtue, but it will not give you virtue and it will not redeem your vices. Money will not give you the unearned, neither in matter nor in spirit. Is this the root of your hatred of money?

Let me give you a tip on a clue to men’s characters: the man who damns money has obtained it dishonorably; the man who respects it has earned it.

“Run for your life from any man who tells you that money is evil. That sentence is the leper’s bell of an approaching looter. So long as men live together on earth and need means to deal with each other—their only substitute, if they abandon money, is the muzzle of a gun.

“But money demands of you the highest virtues, if you wish to make it or to keep it. Men who have no courage, pride or self-esteem, men who have no moral sense of their right to their money and are not willing to defend it as they defend their life, men who apologize for being rich—will not remain rich for long. They are the natural bait for the swarms of looters that stay under rocks for centuries, but come crawling out at the first smell of a man who begs to be forgiven for the guilt of owning wealth. They will hasten to relieve him of the guilt—and of his life, as he deserves.

“Then you will see the rise of the men of the double standard –the men who live by force, yet count on those who live by trade to create the value of their looted money—the men who are the hitchhikers of virtue
. In a moral society, these are the criminals, and the statues are written to protect you against them. But when a society establishes criminals-by-right and looters-by-law—men who use force to seize the wealth of disarmed victims— then money becomes its creators’ avenger. Such looters believe it safe to rob defenseless men, once they’ve passed a law to disarm them. But their loot becomes the magnet for other looters, who get it from them as they got it. Then the race goes, not to the ablest at production, but to those most ruthless at brutality. When force is the standard, the murderer wins over the pickpocket. And then that society vanishes, in a spread of ruins and slaughter.

Do you wish to know whether that day is coming? Watch money.
Money is the barometer of a society’s virtue. When you see that trading is done, not by consent, but by compulsion—when you see that in order to produce, you need to obtain permission from men who produce nothing—when you see that money is flowing to those who deal, not in goods, but in favors—when you see that men get richer by graft and by pull than by work, and your laws don’t protect you against them, but protect them against you—when you see corruption being rewarded and honesty becoming a self-sacrifice—you may know that your society is doomed.
Money is so noble a medium that it does not compete with guns and it does not make terms with brutality. It will not permit a country to survive as half-property, half-loot.

“Whenever destroyers appear among men, they start by destroying money, for money is men’s protection and the base of a moral existence. Destroyers seize gold and leave to its owners a counterfeit pile of paper. This kills all objective standards and delivers men into the arbitrary power of an arbitrary setter of values. Gold was an objective value, an equivalent of wealth produced. Paper is a mortgage on wealth that does not exist, backed by a gun aimed at those who are expected to produce it. Paper is a check drawn by legal looters upon an account which is not theirs: upon the virtue of the victims. Watch for the day when it bounces, marked: ‘Account overdrawn.’

“Until and unless you discover that money is the root of all good, you ask for your own destruction. When money ceases to be the tool by which men deal with one another, then men become the tools of men. Blood, whips and guns—or dollars. Take your choice—there is no other—and your time is running out.

As Francisco says at the end of the speech, "go ahead, refute one word of it."

Sunday, March 15, 2009


Much is being currently written about the events in Atlas Shrugged, Ayn Rand's masterpiece on what happens to a society based on collectivist- statist principles and altruistic ethics.  Many are writing that we are seeing the events in Rand's novel played out today, in a frighteningly all too real  display of altruistic collectivism implemented by the state (federal government). 

In one part of Atlas Shrugged, the story centers on the ruination of a bank- Community National Bank, run by Eugene Lawson. Rand had Lawson labeled in the story as the "banker with a heart." His actions in running his bank were guided solely by altruism;  "need" was the only standard for which decisions were based. The results were predictable. 

From Atlas Shrugged, here is Lawson explaining how the bank went under: 

“They [the borrowers] were perfectly good men. They were a perfectly sound risk—though, of course, I am speaking in human terms, not in the terms of cold cash, which you are accustomed to expect from bankers. I granted them the loan for the purchase of that factory, because they needed the money. If people needed money, that was enough for me. Need was my standard, Miss Taggart. Need, not greed. My father and grandfather built up the Community National Bank just to amass a fortune for themselves. I placed their fortune in the service of a higher ideal. I did not sit on piles of money and demand collateral from poor people who needed loans. The heart was my collateral. Of course, I do not expect anyone in this materialistic country to understand me. The rewards I got were not of a kind that people of your class, Miss Taggart, would appreciate. The people who used to sit in front of my desk at the bank, did not sit as you do, Miss Taggart. They were humble, uncertain, worn with care, afraid to speak. My rewards were the tears of gratitude in their eyes, the trembling voices, the blessings, the woman who kissed my hand when I granted her a loan she had begged for in vain everywhere else.”

The bank crashed.

Sound familiar?

Credit: We adapted this post from the post "The Banker with a heart" by Henry Mark Holzer, who was Rand's lawyer for many years in the 1960's and 70's and runs his blog here.

The idea to post the particular except with regard to the current problems we are experiencing today, along with the closing line "sound familiar?"  were his. 
We did this because he, and Rand, were right. 

Friday, March 13, 2009


The Broward Blog details an absolutely horrible event that occurred in Juvenile Court this week in which a 12 year old boy in Juvenile court custody was forced to urinate on himself because there were no bathroom facilities available and not enough officers present to take him to a bathroom.  (The title of the post links to the blog post)

This is a child we're talking about. 

We wonder how this sad event will scar this child for the rest of his life.

The moral test of government is how it treats those who are in the dawn of life, the children; those who are in the twilight of life, the aged; and those in the shadows of life, the sick, the needy and the handicapped.
Hubert H. Humphrey. 

No smart quip. No pithy comment. No wisecrack. 

Just a deep sadness for the child and outrage that we participate in a system that does this and much much worse to our children. 

See you Monday when we hope we are feeling a bit more hopeful. 

Thursday, March 12, 2009




UPDATE.  According to the Herald article, the matter is not over with the not guilty verdicts. Federal District Judge Alan Gold will let the prosecutors stew in their misery over the weekend and then call them on he carpet Monday morning to have them explain their behavior during the investigation and trial of this matter. From threats and retaliation against Markus and his client when the defense filed a motion to suppress the client's statement (the prosecution  superseeeded the indictment and added 140 counts, then lost the motion to suppress because the magistrate found the lead agent was not credible) to the secret tapings of the defense team for which they did not obtain permission from Washington, the prosecutors have a lot to account for. 

 Then for the defense their is the troubling matter of not pleading guilty in Federal court. For that, the prosecution is expected to argue that Markus and Seitles should be subject to an investigation and harassment, since fighting and winning in federal court violates the Cheney Law. Plus,  this is defense attorney  Marc Seitles second win against the same prosecution team in six months, and that means he's subject to enhanced penalties. 

Wednesday, March 11, 2009


Accused and soon to be convicted swindler Bernie Madoff will probably plead guilty in Federal Court in the Southern District of New York tomorrow.  The title of the post links to the NY Times article. 

He is 70 years old and will receive what will in effect be a life in prison sentence. 


A thirty year old man  steals 10 million dollars and get's a ten  year sentence. He's out when he's 38 or so. 

A seventy year old man steals 10 million dollars and gets a ten year sentence. Statistically speaking he is likely to die in prison. 

Should age be a factor in sentencing vis a vis the impact the length of the sentence is likely to have on the person's life span?  Should the likelihood that an older person is more likely to not live out their prison sentence be a factor in reducing their sentence?

We're not talking about Madoff here. His crimes dwarf what we're talking about. He changed the face of the financial landscape of this country by bankrupting charities that have little ability to recoup their endowments and he stole the life savings of hundreds if not thousands of older individuals, many of whom have no idea and little ability to support themselves in their 70's, 80's or beyond. 

Madoff will get what amounts to a life in prison sentence because the number of his victims and the sophistication and scope of his fraud dwarfs any known previous scheme. 

So putting aside the emotions associated with Madoff, should age, and specifically the advanced age of an individual be a reason for a departure below the guidelines?


Our favourite federal blogger continues to do his job and make life miserable for federal prosecutors who secretly taped him without permission from the Department of Justice. 

Recently we learned that in one of our federal cases we were taped by the government:

Rumpole: "You know you still owe me money."

Client: "Yeah. Nothing I can do about it. What's our defense at trial?"

Rumpole: "I'm not sure."

Client: "Looks like we're going to lose."

Rumpole: "Yeah. Nothing I can do about it."

See you in court, not talking on the phone. 

Tuesday, March 10, 2009


UPDATE: Judge Pinero being picketed by supporters of the anti-christ. Herald article here.
We guess there are worse enemies a judge could make.  Maybe Judge P should put a few bucks on 666 in the daily lottery. Just a thought. 

Sent to us by a long time and careful blog reader, we present to you  a bill in the Florida Legislature to REDUCE the salaries of all elected or appointed officials (including ahem...the salary of Judges) by 5%. 

10-01410A-09 20092020__
1 A bill to be entitled
2 An act relating to public officials; reducing the
3 compensation of certain public officials for the 2009
4 2010 fiscal year; prohibiting the payment of bonuses
5 to such persons; providing for future legislative
6 review; providing an effective date.
8 Be It Enacted by the Legislature of the State of Florida:
10 Section 1. (1)(a) The salary of any elected or appointed
11 public official in this state whose compensation from public
12 funds was $65,000 or more in the 2008-2009 fiscal year shall be
13 reduced by 5 percent for the 2009-2010 fiscal year.
14 (b) In addition, such public officials may not receive a
15 bonus for the 2009-2010 fiscal year.
16 (2) The Legislature shall review this issue during the 2010
17 legislative session.
18 Section 2. This act shall take effect July 1, 2009

HELP WANTED: Must be a member of the Florida Bar more than five years;  demonstrated ability to work from 10-2;  no need to play well with others; intemperate character a plus.

Apply Governor Charlie Crist, Tallahassee, Florida (The Sunshine State). Salary non-negotiable and subject to be reduced 5% every year. 

Query: Isn't there something, somewhere, that we learned in law school, about separation of  powers that prevents a legislature from messing with the salaries of the judicial branch. Not that we think there's anything wrong with it. 

Of course, every Judge can just return to their high-powered legal practice that they enjoyed before coming on the bench, right?  Right?  You know, the practice we hear about ad nauseum in chambers. The one where they prepared every case within a month after arraignment and then tried the case a week later. The one where they tried 40 cases a year and lost maybe one. The one where they made millions but sacrificed it all for public service. 

That's the practice they can return to.  Or not. 

Monday, March 09, 2009


Like Churchill 's lonely warnings about Germany through the 1930's, we've often, singularly,  and loudly decried the inherent unreliability about Eyewitness testimony. Finally, a news media outlet has reported on the issue. 

The title of the post links to the 60 minutes piece on eyewitness testimony

In a nutshell, the piece starts off by examining the case of a young man twice convicted of raping a woman. He was convicted, got a new trial, his attorneys brought the real rapist into the courtroom, and the woman still identified the person from the first trial. After serving ten years in prison Ron Cotton was released when his attorneys located DNA from the crime and it matched the person who they accused of the rape at the second trial. 

How can a person misidentify her assailant in a courtroom twice, even when being shown the real assailant? 

If you don't know the answer to that question then you've never read The Seven Sins Of Memory. 
Click on the title to the Amazon link to the book. If you are a conscientious prosecutor,  judge, or defense attorney, you will spend a weekend reading this book and will realize that just about everything that happens in an identification case is not only done incorrectly, but is done in a manner that just about guarantees that the witness's testimony is scientifically worthless. 

Memory is not like a video tape that is replayed of the event. It is something far less tangible and far more subject to influence than most of us realize. 

In the case reported on by 60 Minutes one of the crucial errors made by the police, unintentionally for sure, was the detective verifying to the woman that the person she picked out of the photo lineup was the same person she identified at the live lineup. That made the courtroom identification a foregone conclusion, and yet as science will tell us, the courtroom identification under those circumstances was basically worthless and totally unreliable.  Yet there isn't a Judge around with the guts to sustain a defense attorneys challenge to these types of procedures.  With so many people convicted on such unreliable evidence, what judge wants to let the genie out of the bottle? 

It will only be when the police are better trained,  that eyewitness identifications will become more reliable. So while innocent people are shuffled off to prison daily on the basis of what is considered the strongest evidence, but is in fact the weakest and most unreliable garbage,  it will only be when the police find it in their self interest to start arresting the right people that change will occur. 

And how sad is that? 

Friday, March 06, 2009


There's a move a foot to ban depositions for third degree felonies. The measure passed 5-3 in the Florida Legislature House Sub committee that handles such matters (We think it's the House Sub Committee on Fascism, but we're not entirely sure). 

This is the thin edge of a large wedge. It will start with third degree felonies and we will end up with no depositions unless the state certifies death. 

Here's a rational proposal: put  the teeth back in the guidelines and statutory maximums. How do you explain to a client that the maximum is the maximum unless the guidelines exceed the maximum and then it's not really a maximum?  True story: client with no priors went to trial before Judge Vic Tobin in Broward. He tells my client's family: "I don't know you and I don't know if your lawyer knows what he's doing because if he loses I can put your daughter into prison for five years." After calming my client and her family down I try the case and get a five minute not guilty. Tobin tries to apologize to me and I tell him to stuff it, that there was no excuse for threatening a client with no priors with prison and to trash me to my client to boot. My point is- under the old guidelines he could not have made that threat because she scored NSPS. 

Here's a better idea: take all the BS third degree felonies like car theft, burglary of an unoccupied vehicle, possession of cocaine residue, worthless check charges, grand theft third degree, resisting with violence, and make them misdemeanors. THEN make all the BS misdemeanors like disorderly intoxication, disorderly conduct, petit theft, and  driving without glasses (yes- that is an arrest-able offense folks) and make them civil infractions and send them to magistrates. 

That is a better way to free up the circuit court judges and the felony system rather than depriving the defense of depositions on cases where clients can go to prison for 5 years. Let some legislator or judge do 18 months in Starke and then say prison is no big deal. 

Do you take depositions in third degree felonies? Do you take depositions at all? Take our new poll. 

See you in court reading those depos. 

EIG: 44% said he was right to scare her straight
22% said he was an insensitive clod.
34% said he was a repeat offender and it was time to go. 

CUETO: 38% said he did the right thing
25% said he lost his temper and should be banned from criminal court.
37% said he lost his temper but it was no big deal

Thursday, March 05, 2009


The decisions from the 3rd DCA start off with a bang, and that's not good news for the SAO. 

In Nodal v. State, the court reversed the "horrible and tragic double homicide" conviction because the trial judge did not grant the defense's request to appoint a neuropsychologist for the defense to examine the defendant and provide testimony where the defense was insanity, and the prosecution had their own neuropsychologist expert.  The decision list Judges David Young and Rosa Rodriguez. 

Rumpole says:
"For the want of a nail the shoe was lost;
 for the want of a shoe the horse was lost;
 for the want of a horse the rider was lost;
for the want of a rider the battle was lost;
for the want of a battle a kingdom was lost;
all for the want of a nail.

Next time judges, in an insanity case, appoint the damn expert and be done with it. 

In Robinson v. State, we see the perils of turning yourself in when you think you are wanted for a crime. Robinson called the police and turned himself in, telling the police he was wanted for murder. He was not. He was wanted for questioning.  The defendant moved to suppress his confession, arguing that his consensual encounter with the police turned into an arrest when he was handcuffed in the back of the police unit. 

Not so says the 3rd DCA.  It was entirely reasonable for the police to handcuff the defendant when he told them he was wanted for murder and "the defendant never asked the police officer to verify the charges." 

Moral of the story: when you turn yourself in for murder in Miami, ask the officer to verify the charges before you are taken away.
Judge Schlessinger denied the motion to suppress at trial, and he gets another notch in his belt courtesy of the 3rd DCA.

And finally in State v. Lacayo the 3rd DCA interprets section 948.30(3) of the Florida Statutes, which requires electronic monitoring for all persons convicted of a crime and designated as a sexual predator to mean any crime, even a non-sexual crime,  so long as the individual has a previous designation as a sexual predator.  Therefore, if you have a previous designation as a sexual predator, and these days who doesn't- then even if you get six months probation for petit theft or driving with a suspended license, the court must impose electronic monitoring. 

So there you have it another edition of our 3rd DCA roundup, and best of all, no judges made the hall of shame. 

See you in court reading those FLWs. 

Wednesday, March 04, 2009


We often use the pages of this blog to point out the frailties and faults of our robed readers. Some of what they do is funny, and some of it is down right scary. 

But we are not all doom and gloom. And after a week of reporting on two Judges who have brought unwelcome controversy to our courtrooms,  we are happy to report, as the Herald reported in an article today (the title links to the post) that long time county court judge Katie Pooler has won a blue ribbon for her strawberry-guava jam at the world famous Plant City strawberry festival. 

Known as the "Big Berry" of Strawberry Festivals,  The Plant City Festival awarded Pooler  the coveted blue ribbon for her well known and top secret recipe.  As the article points out, many lawyers, judges, court personnel and just people who she happened to see wandering the hallways were recipients of her strawberry jam last Christmas.

Well done Judge Pooler, and thank you for humanizing court and making going to court a "sweet experience" for a generation of clients and lawyers. 

See You in court trying to score a jar of the jam.