Just wanted to let the blog know how much I appreciated it the other day in court. Mid-trial, while questioning a state witness on what they said during a hallway interview in order to impeach them, the state vehemently objected to the line of questioning. The judge asks if I have any case law to show that I am allowed to continue down this line of questioning. I knew of the recent 3DCA case that said yes, but couldn't find it in my emails or westlaw and was scrambling. Then almost immediately, co-counsel and I just realized you "briefed" it on the blog when it came out, and a quick search of the blog allowed us to find the case, cite it to the judge, and continue on with our line of impeachment questions of the key state witness. Needless to say, the result was a Not Guilty, and I have to kind of believe the blog had a small hand in that. Thanks again.
Friday, July 31, 2009
Thursday, July 30, 2009
rappaport is partners with mike haber's mom. haber and milton share space.
more on this a bit later
i decent from rumpole
milt is not an great lawyer and will not be a fair judge to all. i hope he proves me wrong if elected
Rumpole replies: This much we know dear reader- you have not read any legal opinions and you have no hope of becoming a judge, much less a janitor in the courthouse. The word is "dissent".
So let me understand. Killing someone while you are driving a car drunk is worth 30 days. But lying about it to the cops, fleeing the scene and then the jurisdiction, not being cooperative and honest is worth 12 year and 4 months? Give me a break. This Stallworth case makes me sick.
I wrote in yesterday because I have a crush on an older lawyer. I find out today he is (sigh) married. I will not pursue him. I just have this weakness for older cuddly guys.
Rumple says: Anyone know who this "hottie" is? I think I fit the bill. I'm cuddly.
And with friends like these....
For what it is worth, I will respond to Rumpole's request to weigh in on the Hirsch quandary.
First of all, in all of the years I have known Milt, my initial duty has been to try to comprehend the intent of his words, while he is busy trying to prove that his GPA was completely earned [Yes, I saw it when the SAO hired him]. How in the world his client thought that he understood that he was being told to commit a crime and flee is beyond the realm of common belief.
Next, I look at the actual words printed in the New Times. Suggesting that the case was so strong against his client that he would have to go to the imaginary planet Vulcan [where Milt probably knows that his descendants lived] cannot be parsed to mean: I cannot defend your case. Go flee the jurisdiction.
In truth, Milt is a bit full of himself [think Graf Zeppelin] and I could not imagine him placing his grand view of himself in jeopardy for ANY client. I do not mean this as a slur, but some people do not care enough about their clients to step one inch over the line. Telling a killer to flee is beyond the pale.
Milt's level of self-assurance has often allowed me to rely upon his word. I cannot conceive of his acting in some way that might permit one to prove that he had fallen from the tower of perfection.
Finally, Milt denied, under oath, any improper advice to his client. The Judge accepted his testimony as truthful. A disgruntled client should not change how we all see Milt - with all his good and bad points [he actually is human], he is no liar.
Judge Glick ruled on admissibility and credibility. Now it is up to the investigators to determine if there is anything else to review. Rappaport's statements and Hirsch's are VERY different.
I see absolutely no reason to think that Milt should not be a Judge. Yes, a potential windbag - but a very bright one. One for whom I will both advocate and vote.
Milt is pompous and arrogant and his sense of humor is not what he thinks it is. Nevertheless, I give him the benefit of the doubt because he is a very knowledgeable lawyer. Clients falsely turning on their lawyers to better their own situation (especially in federal court) is nothing new.
And finally, file this under the "more information than we need" file:
Rumpole: Let me see if I can explain why a judge might not listen to the tapes before ruling on this motion:
Presumably (though it's not clear from the article) the postconviction motion is premised upon a claim ineffective assistance of counsel. In order to establish a right to relief, the defendant must meet a two-pronged test by showing:
1. Trial counsel's performance was constitutinally "deficient"; that is, his actions fell below an objective standard of reasonableness.
2. As a result of counsel's action (or inaction) the defendant suffered "prejudice." In the context of a plea (as opposed to a trial) this requires the defendant to establish a reasonable probability that, but for counsel's action, the defendant would not have entered a plea, but instead would have insisted on going to trial. (Defendant need not prove he would have prevailed at the trial, only that he would have insisted on going to trial as opposed to entering the plea.)
If a defendant fails to establish either one of the two prongs, his postconviction claim must fail. So, the judge could "assume" for the sake of discussion that Hirsch made the statements which the defendant claims Hirsch made (and which defendant recorded). Even if Hirsch made these statements, however, (and even if such statements are sufficient to establish the first prong of deficient performance), the court could find that the defendant failed to establish the prejudice prong. In this case, for example, the court could conclude that there is no way that Hirsch's statements (assuming they were made)affected the defendant's ultimate decision to enter a plea. After all, the defendant fled the country, was captured and returned to Florida, continued to have Hirsch as his attorney, entered a plea with Hirsch as his attorney, was sentenced, and only then did he raise this issue regarding statements Hirsch allegedly made. The defendant would have to establish that, but for the statements by Hirsch (i.e., encouraging him to flee)there is a reasonable probability that he defendant would not have entered a plea, but rather would have gone to trial. The court could have easily determined that the defendant cannot establish this, and thus rest on the failure to prove the "prejudice" prong, making it unnecessary to determine, as a matter of evidentiary fact, whether Hirsch did or did not make the statements.
As a practical matter, of course, this allows the trial court to avoid opening up the can of worms that would inevitably follow from listening to (and thus making public) the tape-recorded conversations (assuming that they are otherwise admissible).
Very often a trial court will make a decision on post-conviction relief based solely on a finding of no "prejudice" so that the court can avoid the thornier task of having to rule on whether trial counsel's performance was deficient. This saves face for the trial counsel and is a perfectly acceptable way to analyze a motion for postconviction relief when it is clear that the defendant cannnot establish prejudice.
Wednesday, July 29, 2009
Tuesday, July 28, 2009
Q. I ain't worried about the accident shit right now.
Let me get her a blow and get her sample. I know they are on
video. I hung her up to dry on that. She gets to the stop
light I mean she is telling me, well, she abruptly slams on the
brakes, blah, blah, blah.
So l ain' t too worried about that. I mean what i s the
chance of hitting a fucking drunk with a cat jumping out the
window. I think they should hold stars for her and I, that's
funny. (Unintelligible) only motherfucker __
Q. Yes. Just let me space the whole thing out. i will
do the narrative for you. I know how I am going to word this,
the cat gets him off the hook. .
I will write the narrative out for you. I will tell
you exactly how to word it so it can get him off the hook.
Q. i am going to show you something. We are going to
bend this a little bit.
Q. Because she is drunk so it is what it is.
A. Hey, You are the expert.
Q. Well, I don't want to make things up ever, because
it's wrong, but if I need to bend ita little bit to protect a
cop I'm gonna. You see the angle of her car --
Q. You see where it's like this?
Q. As far as I am concerned I am going to word it she, is
in the left hand lane.
(Rumpole: What happens next is that the officers, having agreed to doctor the accident report to hurt the defendant and help the officer now need to call over the officer who is taking pictures and get him/her on board so that the photographs don't inadvertently reveal the coverup and perjury.)
Q. Andre. (Unintelligible) Andre, come here a minute.
We'll do a little Walt Disney to protect the cop because it
wouldn't have matter because she is drunk anyway. You see the
angle of her car? You see where the collision is?
Q. You have already taken photographs yes or no?
Q. Well, is there any way -- this is what I want to
articulate that she was in this lane and cut over to this lane.
It was at the angle what I tried to do with my head on camera is
follow the cat. If the cat were to jump you could get to her
exactly. That's what I want.
A. (Unintelligible) .
Q. You don't have to get any pictures I need or any
whatever, because I don't want Joe to get any (unintelligible).
That's not fair to him. She is freaking hammered anyway.
Monday, July 27, 2009
Friday, July 24, 2009
Thursday, July 23, 2009
Affirmed. See Knight v. State, 919 So. 2d 628, 632 (Fla. 3d DCA 2006) (“A
trial court’s determination that a peremptory strike is genuine, rather than
pretextual, ‘will be affirmed on appeal unless clearly erroneous.’” (quoting
Melborune v. State, 679 So. 2d 759, 764-65 (Fla. 1996))).
Judge Tony Marin joins the wall of fame for denying a 3.850 motion and attaching relevant portions of the record to refute the allegations of the defendant. Now how hard is that to do?
Well, it was too hard for Judge Reemberto Diaz, who gets into the hall of shame for his failure to do just that in Gonzalez v. State.
*that wasn't really the theme of his speech, but it should have been.