Thursday, April 30, 2009



John Kastrenakis, long known in these parts as an assistant state attorney who, along with ASA Kevin Digregory obtained a hard fought for  murder conviction against Joyce Cohen for plotting to kill her wealthy husband in their Coconut Grove house, has been appointed a Circuit Court Judge in West Palm Beach. 

After leaving the SAO Kastrenakis was an AUSA in Dade, Broward and most recently West Palm. 

The title of the post links to the Palm Beach Post article. 

Rumpole and friends,

I've already talked to a bunch of the Justice Building regulars, but I wanted to let everyone know, I have left the Herald as part of the recent "force reduction." The story on Abe was my last.

Thanks for the help so many of you have given me over the years, understanding the courthouse and the law. The Justice Building is a fascinating place to cover.

I'm still in town, looking for work, and even considering going to law school, if I can find a way to pay for it.

I hope many of you will stay in touch. My cell stays the same, 305-772-4380. My personal email is susannahnesmith@yahoo.com

Susannah Nesmith
former Herald scribe

Rumpole ponders.....we never got to meet the lovely and talented Ms. Nesmith. 

"Of all the words of song or pen
the saddest are these:
it might have been."

Take care Oh Susannah....you did a great job. 

Wednesday, April 29, 2009


THE UTIMATE SMEAR:  In our humble opinion the boys at the Broward Blog have hurled the ultimate insult at Judge Seraphin. In linking to our article, the Broward Blog has this title: "Judge Seraphin has a Broward Moment." Ouch. Being compared to his robed brethren North of the Border says it all. Double ouch. 

UPDATE BELOW. A county court lawyer writes in about the problem. 

(accused of the crime of "not calling lawyers out of turn")

What in the Sam Hill is going on in County Court? 

Our email is going crazy this morning. 

Here's a sample:

I am blogging as I stand on line in Judge Seraphin's courtroom. I have been standing here for 30 minutes but he refuses to call attorneys out of turn (so there is a line of attorneys out the door). He is also rude What is wrong with him? He is up for election on 2010. I'll pledge $500 to whoever runs against him.

Can some county court lawyer write in and give us the low down on what is going on?

UPDATE: a lawyer sent us this email:

Rumpole, please keep my name private. I am in county court every day.  Judge Seraphin is causing a big problem. Today there was a line out of the door of his courtroom. One lawyer missed a deposition because he was kept waiting over an hour. When the bailiff handed the judge a note asking him to call the lawyers out of turn, the Judge made a big show of reading the note out loud and then crumpling it up. It was rude and uncalled for. It made a lot of lawyers very angry. 

The larger issue is that there is a problem in county court on Wednesdays: There are lots of lawyers who stream in and out of courtrooms trying to get their cases called. Meanwhile, unrepresented defendants who are sitting in court waiting for their 9:00 AM case are not getting their case called until 11 or 11:30. 

What is the solution?  It takes some creative thinking that these judges are incapable of doing. For instance:  Everyone gets a continuance if they want one the first time the case is up. Have a sign in sheet for "first time up cases."  Defense attorneys who want a continuance should be able to walk in, sign the sheet, list the case and their bar number, leave a cell phone number in case there is a problem, and then leave. This would take care of 25% of the cases. 

Second solution: About 10% of the cases are resolved with a plea where the defense attorney has a plea of absentia form. Create another sign in sheet. Have the state leave the plea offer. Have the defense attorney sign in, leave the plea of absentia form, and leave the other information, and leave.  That takes care of 35% of the cases, and I've only spent about ten minutes thinking about this. 

Another solution. Create a master list. If the state is ready, and the defense is ready,  and both sides want it set for trial, both sides can sign the list for a particular case, and BAM! the case is set for trial without it ever being called and without the lawyers having to wait in line. This probably takes care of 40% of the cases on any given Wednesday. Now we're up to 75% of the cases in question without anyone ever having to wait in line. 

Anyway Rumpole, Seraphin is overwhelmed and making most of us miss Judge Lindsey terribly.  His response is to be rude and unconcerned with our problems. Seraphin was never a private lawyer who made a living like we do in County Court. He doesn't understand the need of most of us to be in every courtroom on Wednesday, and then back to our office before noon.  One way to handle this is for every lawyer , when they are before the other county court judges to say "I'm sorry I'm late, but I was in Judge Seraphin's courtroom and he doesn't call lawyers out of turn and made me wait an hour to do one case."

This is an issue for the administrative judges to step in an handle, so you know what that means. Zzzzzzzzzzzzzz.
As you like to say Rumpole. "See you in (county) court."

Monday, April 27, 2009


Lots of Judge Butchko/Rick Freedman discussion in the comments section. 

Vote in our new poll: Judge Butchko: Champion of the 6th Amendment, or trying not to get reversed on appeal?  We have our thoughts on the matter, including the belief that the politics of the representation of indigent defendants sometimes makes for strange bedfellows. 

This much we are sure of: Rick Freedman was representing defendants before most of you louts that have been anonymously criticizing him were out of high school.  All us who practice criminal defense benefit from the hard work by Rick and many others in the FACDL.   These FACDL lawyers who work for us on countless  legal issues donate their time for free. In the course of any year, the FACDL has attorneys filing lawsuits, writing amicus briefs (literally: "lawyers smarter than you telling the appellate courts what to do") , meeting with judges and prosecutors, and working on matters well after the rest us, especially some of us who write blogs, have long since  left the office.  So back off- and the next time you see Rick, buy him a cup of coffee (although he can apparently afford his own Starbucks)

The Jury is out in the Liberty City Six re-trial number three. Stay tuned to the Federal Blog for breaking news. (I still owe Marcus a hundred bucks.) 

Flu alert: At any one time there are 500,000 people traveling in airplanes.  Thus, a flu outbreak somewhere, is a flu threat everywhere. This may not be the pandemic that runs wild, but one is brewing out there somewhere. The NY Times article is here. 

Living in Miami, we live in the "cross roads of Central and South America". We are especially vulnerable to epidemics. Spain, which is a main entry point to Europe for Mexico, is taking  serious action to stop the spread of the the virus. Meanwhile, in the US, we have our highly trained airport security people asking travelers if they feel OK.  That is as effective as asking the 9/11 terrorists if anyone gave them anything to take with them on the plane. 

We need to take these flu outbreaks more seriously, but we don't, and mark our words, we will pay the price. 

See you in court, wearing a surgical mask. 

Saturday, April 25, 2009


Rick Freedman decided to straighten us out about the Judge Butchko issue. (yawn)

Technical foul on you for not getting all the facts before commenting. I was there and it went something like this:

This was Judge Butchko's finest hour on the bench and she deserves nothing but praise for the lengthy hearing held in her courtroom on Friday.

Over the course of 2 1/2 hours, she heard from the State (Penny Brill); the PD (John Morrison); Regional Counsel's Office (Richard Joyce); the Justice Administrative Commission (General Counsel Stephen Presnell); the proposed "wheel" attorney to be assigned the case (Michael Petit); and me as a "Friend of the Court" and on behalf of the FACDL.

The Judge was concerned that the 6th Amendment to the US Constitution was being violated as it related to the particular defendant in this case and it was going to continue to happen in many other cases coming down the pipe. Judge Butchko wanted to do something about it and that is why the hearing took place.

This particular defendant had been charged with a third degree felony and his case was 90 days old.

Judge Butchko was really looking at the bigger picture and not just this one case. This was just the first case of many that the PD has filed a Notice with the Court called a Notice of Inadequate Representation indicating to the client that they have not done anything to prepare their case for trial. They are filing these documents in all of their 3rd degree felony cases where the client is not in custody. They have decided that the priority cases are those that are more serious and those that are in custody cases. The problem with that is, that this case, and others to follow would start to fall through the cracks and Judge Butchko sees this coming and wanted to do something to stop it.

And this particular defendant was concerned that his defense witnesses may leave the jurisdiction before the PD's office ever got the chance to speak with them; hurting his chances for an acquittal.

The Judge held a Nelson Inquiry on Wednesday and as a result of the answers she got from the defendant, she discharged the PD finding that she was providing ineffective assistance of counsel in this case. She by-passed the Regional Counsel and attempted to appoint the next person on the wheel; that person was Michael Petit.

Reg. Counsel objected and at the hearing Mr. Joyce indicated that they could take the case and provide effective assistance of counsel and do it in a timely fashion.

The Judge questioned how this could be possible when her assigned Reg. Counsel Attorney was a part-time attorney that was already handling 65 cases in her court while trying to run a private practice as well. And those 65 cases range from Life felonies to 3rd degree felonies.

The Judge was also told by Mr. Presnell of the JAC that they would not pay Mr. Petit, if she insisted on appointing him, because she did not follow the Statute by appointing RC.

Judge Butchko was adamant about the fact that she saw her upcoming C weeks and that this same scenario would begin to be played out on many of the out of custody C cases. She also stated that common sense dictated that the part-time RC attorney could not possibly take on so many additional cases and provide competent and effective representation in a timely fashion.

She called on me and I told her that she had every right to be concerned about what was happening in her courtroom. The Gideon case from the US Supreme Court, cited to the 6th Amendment to the US Constitution, and provided that the indigent defendant should receive competent counsel and adequate representation. The Florida Supreme Court said that "the problem of excessive caseload in the PD's office should be resolved at the outset of representation, rather than at some later point in a trial proceeding." Other cases I cited tell the court that "when excessive caseload forces the PD to choose between the rights of the various indigent criminal defendants he represents, a conflict of interest is inevitably created".

The Florida Legislature has decided that they can fund “due process on the cheap” and that what is happening in her courtroom today is the result of their legislative wisdom.

I also told her that the Florida Bar's Code Of Professional Responsibility and the Rules Regulating all attorneys of The Florida Bar state "a lawyer shall act with reasonable diligence and promptness in representing a client". And, "a lawyer's workload must be controlled so that each matter can be handled competently. Perhaps no professional shortcoming is more widely resented than procrastination ... Unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer".

Justice delayed in Justice denied.

Judge Butchko was right on yesterday when she forced the issue to a head in trying to protect the indigent defendant in this case and other to follow – she saw them getting the extremely short end of the stick and she was trying to do something about it.

I hope that gives you a better insight into what happened in Court on Friday.

Rick Freedman


The last 12 picks in the draft. The Fins are at 25. Still lots of great talent available because of strange reaches by San Diego and the Raiders, and because the Bucs took the 3rd QB of the first round. 

(21) The Browns are up (again- 3rd time) and pick at 21 (down from 5) Alex Mack, the big center from California. The Browns needed a big O-lineman, and don't think for a second that this pick also has in mind that the Steelers may have taken Mack, plus the Browns needed a big center to deal with the big Nose Tackles (Casey Hampton) that the Steelers throw at you in their 3-4. Nice pick. Good wheelin and dealin by the Browns and Mangini. 

(22) The Vikes.  Does Percy go here? Do the Vikes want another set of problems after their stripper cruise a few years ago?  Yup. Percy Harvin. The explosive Florida WR who can score from anywhere on the field when he gets the ball.  He has 4-4 speed and an unbelievable explosive first step.  Good luck to Percy in the land of 10,000 lakes and a billion pounds of snow. 

Rumpole picks for the Fins, D-Lineman Everette Brown, LB Lames Laurinaitis, Ohio State,  Darrius Butler, CB Connecticut, and  CB Vontae Davis, still available. 

(23) The Cheaters. TRADE TO THE RAVENS-  who grab Michael Oher, a big left tackle. Nice pick here.  Needs a bit of help with technique. Needs to be coached up. But a very good and motivated football player.  Again, we see a AFC North team pick up an O-lineman to deal with the Steeler's rush.  Oher has a Horatio Alger story, with an adopted family after he was essentially abandoned by his parents and was in several foster homes into his teens before finding a family. Good for Oher. We wish him well. 

(24) The Falcons select Peria Jerry, D tackle Ole Miss. A reach in our opinion. This guy plays a two and three technique. A big inside guy, but a second rounder in our opinion. 


The AFC East Division Champion Miami Dolphins select at 25 (we have this feeling it will be one of our choices...) ... VONATE DAVIS. DB. ILLINOIS!!!! Perhaps the most talented CB in the draft. Needs coaching. 5'11. 205 pounds. A big physical kid with good speed and a tough hitter. We like the pick as long as he gets good coaching and keeps his head straight.  This guy is a good man shut down corner, which is unusual for his size. He lacks experience in zone coverage. But he is a hitter and can come up and support the run, and he has the size to matchup with Cheater WR Randy Moss. 

(26) Cheaters. Lookin to trade down. Again.  AND THEY DO. TRADE WITH THE PACK!!!

(26) PACKERS. Probably want CB Butler from Connecticut. NO !!!!! CLAY MATTHEWS, LB USC. Bad pick.  Good special teams players. But is that worth trading for a first round pick?  We don't see the value here.  This guy might not be a career starter in the NFL.  The Pack gave up their second, and their two 3rds for this pick. A Very high price and not worth it, and meanwhile the EVIL GENUIS CONTINUES TO STACK PICKS IN THE SECOND AND THRID ROUNDS. THIS IS NOT GOOD FOR THE FINS . HE MUST BE STOPPED. 

Meanwhile LB Ray Maualuga continues to fall like a federal prosecutor caught holding back Brady material. 

(27) Colts. Donald Brown, Connecticut  RB. Nice pick. Rumbled for 2,000 yards this year. 

(28) Bills. Maualuga? OT  Loadholt?  NO. Eric Wood. Center. Louisvile. A really good football player.  Smart. 4 year starter. 6'3 310 pounds. Very nice. 

OT Loadholt is a big guy. 6'7  330. Moving up draft boards fast, from the 3rd round, to the second, to we heard last night, a first round pick. 

(29) Giants.   Need a WR. Will they  trade with the Cardinals for their disgruntled WR? Hakeem Nicks, WR North Carolina.  A big guy like Anquan Boldin, and cheaper at this pick. No trade with the Cardinals now.  Not a value pick. The Giants didn't come close to picking the best player on the board. This was strictly a need pick,  and the best teams usually avoid those. 

(30) Titans.  Could go RB here with Wells from Ohio State. Or WR. Or LB.  Kenny Britt. WR Rutgers. Big guy, 6'2. I like him better then the Giants WR Nicks. Britt is a local Jersey guy. Hard worker. Tall. Won't get beat up by CBs when running routes. Nice pick here, although I would have taken some of the D-lineman or CB's still available. 

(31) Cardinals.  Want Wells if the Titans don't take him.  And the Cards take Beenie Wells.  Nice RB -235 pounds, decent speed, catches the ball very well out of the backfield.  Good pick here. Edgerrin James will no longer be a Cardinal after this pick. 

(32) Steelers.  Need a center, D-lineman, Corner Back, O-lineman and WR. Will draft the best guy they have on the board and will not draft for  need. Drives Steeler fans nuts during the draft, but then they get over it when they are buying super bowl tickets to watch their team. The Fins should follow the Steelers in how they handle the draft.  The Steelers just signed a CB yesterday (Ratliff from the Colts)  so they probably won't pick one here. 
And the Steelers close out the first round by choosing Evander "Ziggy" Hood. DT  Missouri. 6'3, 300 pounds. An inside 2-3 technique. A little small for a nose tackle. Good value here. Rated at about 24-25 on most draft boards. The Steelers shore up an aging d-line. 

FIRST ROUND SUMMARY:  The Cheaters made their mark by stockpiling mid round picks. The Browns got a very solid center and also added a few extra picks.  The Fins got the corner they needed. With good coaching, this guy starts for many years to come.  The Packers move was bad, while the Bills good a good center for their trade to Philly earlier in the month.  The Cardinals got a good back at 30, which is rare. 


At 11 the Bills reach and take DE Aaron Maybin. Another of these guys who play a  5 technique.   But many draft nicks had Maybin as a bottom 5 pick in the first round.  Michael Johnson was rated much higher. 

The  Broncos reach and grab RB Knowshon Moreno, the big RB from Georgia. Although this is a reach, we like the pick. RB is the position you can reach for, if you need the position and if the guy is a player. RB's (unlike WR's and QB's) can generally play and play well as rookies. This was a pick you would have thought the Bronco's would have made at 17, but they were afraid of San Diego at 16.   Also, with the QB position now up for grabs in Denver, it helps to have a big back take some of the pressure off the QB. At 220 pounds, Moreno is that back. 

The Skins grab DE Brian Orakpo, who fell out of the top ten and this is a great value pick for the Skins. 

At 14 the Saints picked Ohio State CB Malcom Jenkins. We like Vontae Davis a bit better at CB,  but still a good pick here for the Aints. 

at 15 Houston picks USC OLB Brian Cushing. Everything you want in an OLB, but Rumpole says, average at best. This guy will never be as good as say Lamar Woodley, the Steelers OLB who tore up the league this year and was selected in the second round a few years ago.

The Chargers at 16 make a big reach and grab OLB Larry English. From Northern  Illinois this guy was rated as late first, or early second round. The Chargers passed on higher rated LBs like Ray Maualuga, and James Laurinatis. This is a bit of a shocker. 

The Cleveland Clowns are back on the clock, having picked the pocket of the Jets, and with plenty of talent they need still available including the best TE in the draft, some top WRs, some top rated O- Lineman. Maybe, just maybe the Browns do something good for a change. THE BROWNS TRADE AGAIN- TO THE TAMPA BUCS!!!!!

 The Browns got the Jets pick at 17 and their second at 52 and three players for the trade. 

Looking for the Bucs to grab QB Josh Freeman here.  The Bucs moved up two spots, getting ahead of the Broncos. That makes Freeman the pick here because it was logical to suspect the Broncos wanted the big QB. 

The Bucs selected Josh Freeman. Nick pick. 

The Broncos, who may have just had their pocket picked, are now up.  The Boncos grab Tennessee DE Robert Ayers. This guy is explosive and has all the tools. He could be a real steal here. Meanwhile USC LB Ray Maualuga who was considered a top ten pick may fall out of the top 20. Quite frankly we don't like USC LBs as a general rule, but as we are now in spitting distance of our Fins, we wouldn't be surprised to see Parcells grab him. 

Meanwhile at 19, the Browns who have the Bucs pick have TRADED THE PICK AGAIN, TO THE EAGLES THIS TIME.  The Browns swap first rounders with the Eagles and the Bucs and got additional six round picks from both teams as well. 

The Eagles select: Jeremy Maclin, the speedy Missouri WR. Need to keep McNabb happy. 

The Lions select again to round out the top 20. Fins a few picks away at 25. If they really like someone, now is the time to move up. Moving a few spots costs a six rounder at this stage. Not a bad deal.  While we are on record saying the Fins would never select a WR in the first round, Parcells would love to grab Brandon Pettigrew, the big TE (6'5, 260) from Ok State. 

The Lions select (in a spot they got from the Cowpokes for receiver WR last year) Brandon Pettigrew (there goes the Fins pick). Nice pick. A big guy. Can block and help protect their new QB, and is a great big and fast target for their new QB. Many people had Pettigrew rated as a top ten pick in their draft. We love this pick for the lions. Very nice. 


The Lions have picked QB Stafford and have given him more guaranteed money than any current player.  Something is wrong with a system that gives a rookie who hasn't played a down more money than the best player in the NFL. 

The Key to the draft is the next 3 teams. Rams,  Chiefs and Seahawks.

The best player in this draft is LB Aaron Curry.  Who will take him? 

The Rams are on the clock.  OT Eugene Monroe has been penciled in as the pick. Last night the news broke that the Rams bought a plane ticket for USC QB Mark Sanchez. 

Sanchez is a junior who has started 16 games. This guy is not a top 20 pick.  At 6'6 250  K State QB Josh Freeman is "Daunte Culpepper". Wouldn't you take Culpepper in the top 10?

The Rams are waiting for a trade offer.....  and they select Baylor Tackle Jason Smith. Rumpole says "good pick". You build teams with guys who put their hands on the ground.  Smith replaces Tackle Orlando Pace who the Rams drafted number 2 overall about ten years ago. 

KC up: should select Curry if they know what's good for them. Curry is a 5 technique guy (see our post yesterday for what that means- but basically he rushes the QB  from the edge. )
And the Chiefs pick... LSU DE Tyson Jackson!!!!! Who just shot up the draft board. We had him going 10-15.  Jackson is also a 5 technique edge rusher. 296 pounds. He plays over the tackle (4 technique) and rushes outside (5). Good player, but still a reach here.  The Chiefs have now selected a DL in the first round and in the top ten twice in the last 2 years, and a player from LSU in the first round three straight years. 

Seattle up...gonna keep harping on this. The best football player in this draft is Aaron Curry.... and the Hawks take him. Nice pick!

Cleveland Clowns...errr Browns are up.  Texas WR Crabtree should be the pick. Clowns shopping Braylon "hands of stone" Edwards.  TRADE!!!!!

J..E...T...S....JETS JETS JETS GET THE TRADE.  Here goes QB Mark Sanchez.  And interesting to note Browns Coach Mangini makes trade with team that fired him last year. 

The Bungals...err the Bengals are up and they tale Andre Smith, the big Alabama tackle who screwed up at the combine and bugged out. Apparently it didn't cost him. Smith us 330 pounds with the longest arms of any tackle... but you have to worry about character issues with this guy and keep him away from McDonalds.  You tube Smith running without his shirt on at the combine. It's not pretty.  Playing in the same division as the World Champion Steelers and the Ravens, teams traditionally with top ranked defenses, the Bungles needed an O- Lineman, but Monore should have been the pick. He's just as good a tackle, and a much better person, meaning a much better risk for the tens of millions of dollars the Bungles will pay at this spot. 

The Raiders are up at 7 and WR Crabtree should be the pick. But the Raiders being the Raiders select Maryland WR Darrius Heywood-Bey, the WR from Maryland.  This was a reach. Why not Crabtree?

The Jags nab tackle Eugene Monore who falls to them. This was a bit of steal as most people had him ranked going number 2. 

And the Pack will now grab Boston College  Nose Tackle  B J Raji- 6-3 330. A big guy to clog up the middle in the Pack's 3-4 defense.  Raji went just where everyone thought he would go. 

Rounding out the top ten are the Niner's and we can't see Crabtree falling beyond the 49'ers, unless they trade out.  The 49'ers grab Crabtree which is a steal at ten. Great value, great pick, and perhaps the fourth or fifth best player in this draft. 

Final thoughts about the top ten:  The Jets blew it big time unless Sanchez turns out to be 10X better than Josh Freeman. Sanchez is a junior who started 16 games, and he is NOT worth the trade to get into the top 5. But time will tell. 

The Niners and the Jags got the best value in the top ten, along with Seattle who at 4 got arguably the best football player in the draft.  The Chiefs made a reach at 3, so did the Raiders (surprise) at 7. The Lions risked it all on a number one QB who is guaranteed 40 million without having played a down.   

This was an interesting top ten. Back in a half hour or so with the next ten. 


Judge Butchko  is upset. David Ovalle of the Herald writes:

In unusually harsh words, Miami-Dade Circuit Judge Betty Butchko blasted the flaws of the system that defends the indigent accused of third-degree felonies.

The title of the post links to the article. 

We weren't there and we didn't see it. However, after  reading the article, and after having been in these courts for well over 20 years, we can speculate that it went something like this: a judge got upset because things didn't go exactly the way she wanted them to, and being a Judge means you always get your way, right?

Or something like that. 

Our point being, stop whining and making a federal case out of the fact that a PD was not ready to try a third degree felony. That's been happening in our building since most of these judges were in diapers. 

See you in court, ready for trial


Starting at 4pm we will probably(-you never know what else may come along) be blogging live for the NFL draft. 

Right now, we predict this: with the 25th pick of the 2009 NFL Draft, your  AFC East Division Champion Miami Dolphins select Everette Brown, Defensive End,  Florida State.  Brown is an explosive pass rusher who plays a number 5 technique and will probably be an outside linebacker in the NFL. 

Football lingo- 5 Technique. On defense, imagine the spot opposite the center is zero. Moving outward, the 1 technique would be the spot between the center and the guard. The 2 technique would be the defensive spot over the guard. The 3 technique is the defensive spot between the guard and the tackle. The 4 technique would be the spot over the tackle, and the 5 technique would be the classic defensive end rushing the outside shoulder of the tackle.  Jason Taylor was the classic 5 technique outside pass rusher and Brown could fill Taylor's role for the Fins. 

For those of you who care, on the offensive side, football terminology uses letters instead of numbers, starting with A over the center, and moving outward,  "b gap". "c gap", etc.

Other possible picks:  ILB Lames Laurinaitis, Ohio State,  Darrius Butler, CB Connecticut,  Larry English, DE Northern Illinois (another 5 technique player who will be an OLB in the pros) and Vontae Davis,  CB Illinois. Davis has perhaps the most upside of any defensive corner in the draft but character issues may make enough teams pass on him so that he drops to the Fins. Otherwise Davis is a top 15 pick. 

What Parcells will not do is draft a WR in the first round unless lightening strikes and Michael Crabtree falls to the Fins , which is a near impossibility. 

PS. The high today should be 87. Summer is here. Yuck.

Thursday, April 23, 2009


UPDATE: Swine flu outbreak in Mexico kills 60. This is scary because this is how it starts. 

We learned today that County Court Judge Ada Pozo, who defeated Jeff Swartz at the polls, has resigned as of the end of May. 

Anyone know why?

FACDL guy Rick Freedman wanted us to give props to the many criminal defense attorneys who have stepped up and volunteered to take a case pro bono (literally "how rumpole is paid") to help ease the PDs work load. 

From the press release:

Beginning this week, 38 experienced criminal defense attorneys who are members of FACDL-Miami, will begin accepting felony cases from the Public Defender's office, as part of a volunteer (pro bono) attorney initiative to help Miami-Dade's poor. The initial response to the program has been fantastic and veteran lawyers with nearly 900 combined years dedicated to the legal profession in our community including Eugene Zenobi (39 years), Jack Blumenfeld (42 years), James McGuirk (42 years), Joel Robrish (40 years), William Aaron (37 years), Bruce Fleisher (36 years), Paul Morris (34 years), Bruce Alter (33 years), Richard Sharpstein (33 years), Alan Greenstein (32 years), Leonard Sands (31 years), Samuel Rabin (30 years), Jeffrey Weinkle (30 years), Richard Hersch (29 years), Eric Cohen (28 years), Bruce Reich (28 years), Milton Hirsch (27 years), Dennis Kainen (27 years), Michael Catalano (26 years), Lawrence Kerr (26 years), Rick Freedman (25 years), Faith Mesnekoff (25 years), Phil Reizenstein (23 years), Hector Flores (22 years), Tony Moss (22 years), Roberto Pardo (22 years), Marjorie Alexis (20 years), Robin Kaplan, Beatriz Llorente, Marshall Dore Louis, Mark Eiglarsh, Arthur Jones, Joaquin Padilla, Jackie Woodward, Keith Pierro, Larry McMillan, Elizabeth Perez, Michael Mirer, and others have offered their services to this wonderful program. 

The Sun Sentinel is covering the contretemps over Judge Cohen's advocacy and donation to a domestic violence prevention group here. Judge Cohen sits in the Broward's DV division. 

Query: Doesn't the requirement of avoiding the appearance of impropriety require Judges to avoid work for charitable organizations that directly relate to the type of cases they sit on? We mean, a Judge deciding landlord and tenant cases shouldn't donate to tenant's rights groups; a Judge presiding over Med Mal cases shouldn't donate to political action committees seeking to cap attorneys fees,  right? So why should a Judge handling DV cases donate to a victim's rights organization?  

There are plenty of  needy charities that having nothing to do with cases Judge's sit on.  Sorry Judge Cohen, but your charitable work smacks of politics. You should recuse yourself from all DV cases, meaning you should be transfered to civil court for a while.  

Another beautiful spring weekend awaits. Enjoy. 

Wednesday, April 22, 2009


If it's Wednesday, then you can get a Sundae at Carvel and read our exclusive summary of this week's  3rd DCA's criminal opinions (and we mean that just the way it reads).

Ubila v. State- here's a guy who took three (count em, 3) pro se motions to correct sentence to the 3rd DCA for concurrent 15 year sentences with 10 year min mans  as a violent career criminal.  Twice he won in the 3rd, and twice he was re-sentenced to the same sentence. The 3rd DCA, clearly tiring of the yo-yo, vacated Ubila's violent career criminal sentence for his grand theft conviction (and affirmed the same sentence for his burglary conviction) holding that "theft does not qualify as a primary or predicate offense" for  violent career criminal sentences.  Lesson: give the 3rd enough chances and they'll figure out a way to affirm your sentence. 

In Williams v. State, we see everything that is wrong with appellate law and the 3rd DCA.   The court admonished the prosecutor (there's a lot of that going around lately)  for an improper closing argument :

"[W]e again find it necessary to admonish the  prosecutor and remind all lawyers who practice in this state, that closing arguments  must be confined to the evidence in the record or which can reasonably be inferred  from the evidence.... 
Trial attorneys must avoid improper argument if the system is to
work properly. If attorneys do not recognize improper argument, they should not
be in a courtroom. If trial attorneys recognize improper argument and persist in its
use, they should not be members of The Florida Bar.”

However, this being the 3rd DCA, they affirmed the conviction because it was a murder case, and those are bad.  So now the defendant serves a life sentence, happy and secure in the knowledge that although the prosecution did not play by the rules to secure his conviction, they've been properly admonished. 

In State v. Arango, Judge Larry Schwartz was reversed by the 3rd for suppressing evidence and granting a motion to dismiss. "Stop!" said the 3rd. "We just won't tolerate that kind of judicial behavior."

The 3rd was in top form this week. 10 reported decisions, 9 cases affirmed for the state and the one reversal was on an appeal by the prosecution. 

The 3rd DCA: "Abandon hope all ye defendants who appeal here."
Or words to that effect, at least this week. 

Tuesday, April 21, 2009


David Markus writes about the recent Supreme Court decision about searches of automobile compartments and concludes that "the Fourth Amendment is not dead yet." Keyword- "YET".

Markus and the Broward Blog also report that former Dade Assistant State attorney and current Chief Judge of the Broward Criminal Court division Ilona Holmes is being mentioned as the next US Attorney for the Southern District Of Florida (motto: "Give us a case and we'll blow it big time.") 

Judge Holmes would whip that office into shape. You betcha. 

Query: What exactly are our obligations in the upcoming Judicial elections? Hypothetically speaking, lets say we personally endorse one candidate over another.  Do we have an obligation to remain neutral on the blog? 

(mug shot of woman flipping off cops)

NFL draft this Sunday. Say what you want about the Fins' needs, but they won't be doing a Nick Saban and drafting a WR (and his family) in the first round. With a draft deep in corner backs, look for a D-lineman, or a linebacker in round one unless a highly rated corner back falls. 

See you in court, dreading the dog days of summer.  How about a discussion on what is the best time to go away over the summer and where are the best places to go? (Canada, North Carolina, Tennessee, Hialeah, etc. ) 

Monday, April 20, 2009



The NY Times is reporting that the 4th Somali pirate who surrendered is going to be brought to NYC for prosecution. (Click on the title of the post).  It will be the first prosecution for piracy since Gore sued Bush, and before that, sometime in the 1700's.  To bad Sy isn't around to defend the Pirate. 

The Feds are blowing it of course.  Given the Somali Pirates' reputation for lying, stealing, and violating the law, the natural US attorneys office to handle the case is right here in the Southern District of Florida. Who knows more about disregarding the law than that band of unruly ruffians on NE 4th  Street? And didn't three of them just get their heads figuratively blown off in public? Really, the comparisons are just too good to be true. 

Check out our new "race card poll" and vote.  (and yes that last sentence is written in colours of the rainbow- red, orange, yellow, green, blue, indigo, and violet.)

See you in court matey. 

Friday, April 17, 2009


We owe our favourite federal Blogger David Markus a hundred bucks after we booked his bet on the Castrnoves  jury trial. He predicted a full acquittal, and ever hungry for action, and fully convinced Mr. Markus can win trials more often than he can predict them, we took the bet.  As you know by now, there were full acquittals across the board in federal court on Friday (yeah, but were the prosecutors referred to the Bar as well?) and this is a bet we are happy to pay off. 

Miami Dade Police officer Jesus Rodolfo Hernandez was arrested in a drug sting after he was seen taking cash and drugs from a car. When man bites dog we'll lead with this story, until then it's just another story in the big city. The Herald article is here. 


According to our reader "Batman" (we use only the best sources) the DBR had an article today in which Judge Adrien says, in response to the fact that he now has two challengers for his Circuit Court seat, that not only has he not been rude to anyone, but that the only reason he has two challengers is because he is black.  Judge Adrien is quoted as saying this: 

“We come from humble means,” he said. “We’re going to be targeted because of our race.”

This is  truly one time we are speechless. We leave it to you, dear readers, and the vox populi to respond to this very serious accusation. Judge Adrien has as challengers a former Judge and a former prosecutor who is now a law professor. Neither of these two individuals has ever, ever, ever, been accused of being racist. These are serious allegations for a sitting judge to make. 

What say you, legal community of Miami?

See You In Court, scrapping up a hundred bucks. 

Wednesday, April 15, 2009


If it's Thursday, (or sometime thereafter) it must be time for our weekly and weakly review of the opinions issued by that monument to justice in Kendall- the 3rd DCA.

Speaking of Justice, we start with a rousing affirmation of a drug trafficking conviction of two Defendants in Lelieve v. State, which stands for the proposition that for  3 judges appointed by Jeb Bush, there is little the state can do wrong at trial, including violating a pre-trial motion in limine, and allowing the prosecution to argue at closing evidence that was not introduced at trial. What's a little problem like arguing for guilt based on evidence that does not exist among republican judges? Not much here.  Throw in the 3rd DCAs view that the trial court properly denied  a motion to continue to allow the defense to subpoena witnesses that just re-entered the jurisdiction,  and you have all the makings of justice 3rd DCA style. 

Here's the problem with that last little issue: if the defendant had pled guilty, the court would have conducted a solemn plea colloquy assuring the defendant that in this wonderful country of ours, which has the greatest legal system known,  if the defendant wanted to subpoena witnesses the attorney for the defendant could do so, and use the power of the court to enforce those subpoenas. 

So as we see it, you can plead guilty and be assured you can subpoena witnesses, but if you go to trial and really want to do it, no dice. Hmm...

What is it about rule 3.850 motions that makes judges go nuts and forget all the case law they are given at those barren and arduous judicial retreats? 

 While not joining our wall of shame, Judge John Schlessinger gets honorable mention in Cury v. State for denying a rule  3  BEFORE the case was decided on appeal. Come on Judge, even PD interns know that the appeal must be final before the rule 3 can be filed. The appeals court straightened Judge S out, and ruled the denial was a denial without prejudice. Good luck Mr. Cury on bringing that rule 3 back before Judge Schlesinger a second time. 

Ah, but Judge Venzer does join our HALL OF SHAME for denying a rule 3 without a hearing and without attaching the portion of the record conclusively proving the defendant is not entitled to relief.  See Wiggins v. State. 

So what have we learned today?  "A rule 3 before appeal will not prevail"; (will one of our robed readers please cut and past that little ditty and email it to Judge Schlessinger in Civil court. Actually if about 10 of you do it, it will really be fun.) 

If you want to subpoena a witness for trial, you can, if you plead guilty. If you really want a trial, then try bringing the argument up somewhere other than that court right next to the FIU campus. 

UPDATE (non legal or REGB related)
The year was 1976, and this tall and gangly rookie pitcher for the Detroit Tigers burst on to the Major League Baseball scene with a complete game 2-1 win. He stalked the mound, talked to the ball, bent down and smoothed the pitcher's mound with his hand, and captured fans around the nation with his genuine love for the game and fun antics. He was Mark "The Bird" Fidrych and he died yesterday at age 54 in an accident. 

This was a time and an era when superstar baseball players did not come with their own management and team of trainers. This was a time when a new star player in this most  American of   sports could and did capture  the entire attention of our country. 
Mark Fidrych was everything that was right and great about baseball. His death is a tragic loss for his family. 


One of the absolute pleasures of working in the REGJB (warning:  gratuitous and cheap shot at judges coming up)  beyond the absolute pleasure  of working with distinguished, experienced (cough cough) and dedicated jurists, who all sacrificed lucrative legal practices just to serve our community in our time of need,  is the first class way the maintenance crew responds to emergencies. 

To prove out point, here is a picture of a crack crew expertly dealing with an emergency. This will be done and cleaned up by, oh, August. 

We hereby certify that we took the above picture on Monday, April 13, 2009 at approximately
 10: 00 AM. 

Yup. They closed a main thoroughfare down to one lane on the busiest day of the week, and then did nothing. 

See You In Court, using the stairs. 

Tuesday, April 14, 2009


UPDATE:  He kept a pistol under his robes, a mini electric chair on his bench, and once said to me "How high can you count" when I asked him to set a bond for my client. Long time cantankerous Judge Daniel Futch has passed away.  Here is the Sun Sentinel Obit. 

Phil Spector, music producer, member of the rock and roll hall of fame, founder of the "Wall Of Sound" music of the 1960's was found guilty of second degree murder on Monday in Los Angeles. He faces 18 years in prison.   The title links to the NY Times article. 

Meanwhile, in Miami Federal Court, race car driver Helio Castroneves  is still dancin with the Feds as he and his lawyer Roy Black sweat out a jury verdict on tax evasion. If we were the defense attorney, we probably would have tried to avoid getting a verdict during the week of April 15. But what do we know?

And finally, in a move that signals the beginning of drastic changes in US/Cuban relations, President Obama eased restrictions on travel between Cuba and the US. US citizens will now also be able to send as much money as they want to family members on the Island. 

Cuba will change. And change is nearer than you think. As history shows, as that is needed is one crack, and the walls and barbed wire of communist oppression will come tumbling down. Remember you read it here first. 

We've seen a lot of change in this town.  During the riots, we entered the REGJB with National Guard troops standing guard. But nothing will compare to the day the communist regime in Cuba topples down. 

See you in court practicing our Spanish.  As Fredo wondered, "How do you say Banana Daiquiri in Spanish?"

Monday, April 13, 2009


In light of our favourite federal bloggers stunning win in federal court, and the simultaneous collapse of the career of at least three prosecutors who had their fingers in the case, the question some people are posing is whether there will be repercussions for Mr. Markus in his representation of future clients? Will the prosecutor's office  take this colossal embarrasment  out on his future clients?

Here is the first comment we received:

Here's my question. 
1. Was it a good idea at the end of the day for Markus to do the right thing and go after these prosecutors and make them pay for the wrongs they did?

2. Would another defense attorney have just ignored some of the facts and not make waves?
What I am getting at is, will Markus be a marked man and find it harder to get plea deals at the AUSA office based on such a high profile slam of that very office?
Would another defense lawyer have gone the extra few miles or would they have just look towards the future and not made any waves?
I ponder this question because it speaks volumes for the guts it takes to be a true defendar of the law and what it represents. 
If I was facing federal criminal charges would I now want Markus or is he damaged goods for royaly upsetting the AUSA office like no other could?

Rumpole says:  the answer is simple: an attorney does not owe a duty to future clients. You owe a duty to your current client to do your level best, as Janet Reno would say, and you have an affirmative obligation not to diminish your performance to your client one iota in the belief that may benefit other current clients or future clients. 

Is it really all
that different in State Court?

Rumpole says:  Yes. If for this simple reason- if you recall in the Markus saga, just before trial started he and his co-counsel met with the prosecutors' supervisors to discuss their concerns that the prosecution had taken a personal and vindictive tone. True to the nature of federal bureaucrats, the supervisors did nothing. 

As much as we criticize the current SAO administration, we believe there are enough supervisors left over from the Reno administration who would not tolerate this type of behavior. 

See You In Court.