3rd DCA ROUNDUP

It's that time of the week again but lets not get "hypertechnical" (this will become relevant in a bit.)

Hayes v. State stands for some well known propositions: you cannot be convicted for trafficking cocaine by possession and possession of cocaine with intent to sell. You can however be sentenced as an habitual offender for trafficking. Ouch. We guess there are never enough minimum mandatories to satisfy the prosecution and legislature.

Has anybody ever really sat down and upon reflection realized that Florida's sentencing scheme resembles a blind person's attempt to put together a puzzle in the middle of a windstorm? It's a mishmash of legislative pandering to the "get tough on crime" crowd without any recognition that sentences and minimum mandatory sentences overlap and make little if no sense. Far be it from the legislature to trust a judge to evaluate a defendant's prior record and give an appropriate sentence. Nope- better to have someone a few years out of law school in charge of that.

State v. Moreno-Gonzalez: Oh, this is a beauty. The police ask for a search warrant. The police prepare an affidavit for the warrant. The police DO NOT sign the affidavit. Held: "What's wrong with that?" Kudos to Judge Cope for his dissent in writing that "Florida follows a rule of strict construction of the statutory and constitutional provisions governing the issuance of search warrants, so the failure to sign is fatal to the warrant. "

But how does the majority dismiss Judge Cope? They call him "hypertechnical"

Yet, our dissenting colleague would do precisely what the United

States Supreme Court dictated should not be done, that is, invalidate the warrant by

interpreting the affidavit in a “hypertechnical” manner...

We suggest a little experiment for Judges Cortinas and Lagoa: try taking your paycheck to the bank when it is not signed and see what they do with it. Then let us know if a signature requirement is "hypertechnical". Or, maybe we'll just file sworn motions to dismiss that are not signed and argue that the court should consider the merits because a signature is a"hypertechnical" requirement.

How about those "failure to sign a citation" crimes? Are those just hypertechnical as well?

So now warrants don't have to be signed in Florida. Next they won't need them at all, because really, if the police have probable cause, isn't the whole warrant mishagosh just "hypertechnical" mumbo-jumbo?

But just to show you that the 3rd DCA is not a hard-hearted institution; that it's not all "hypertechnical" mumbo-jumbo, take a look at the decision in Benjamin v. State:

Facts: The trial court sentenced the defendant as violent career criminal based on a battery of police officer prior qualifying offense.

Problem: battery on a police officer is not a qualifying offense for the VCC act.

See De La Portilla v. State, 2 So.3d 1125 (Fla. 3rd DCA 2009).

Issue at hand: The defendant filed a motion with the trial court- denied. The defendant filed a second motion- which was denied as procedurally barred as a successive motion.

The Defendant appealed- the 3rd originally denied the appeal because the motion was procedurally barred because it was a successive motion.

Appellate counsel filed a motion for re-hearing...and someone finally took the time to read the file and the defendant's original complaint. You see, there's a real danger in turning clerks loose to write opinions in which the holding is "denied as procedurally barred.". Do a few thousand of those and eventually someone ends up serving 30 years on an illegal sentence. "Woops, sorry pal. How can we make it up to you?"

Lets put this in clearer terms for you. It took this defendant at least two motions before the trial court, and one trip to the 3rd where he originally lost because the 3rd just piggybacked on the trial court's second denial that the claim was successive before someone really looked and said to themselves- "hey wait a sec- this guy's serving 30 years on an illegal sentence!". Kind of sad when you think about it.

Hall of Shame: Judge Thornton here; (we may just not come to his fundraiser unless he straightens up and flies right on this issue that bothers us so much);

And Judge Miller is in the Hall again here (and we can't imagine ever attending a fundraiser for a Judge who wants to be known as "maximum").

THE HIGH COST

In this season of religious renewal of spirit, soul and body, comes this editorial from the NY Times (the title links to the editorial) that the Death Penalty in Florida costs $51 million dollars a year more than if defendants were sentenced to life in prison without parole. California, which can afford it the least of any state, spends an extra $114 million a year to pursue the death penalty. California has executed 13 people since 1976 for an astounding quarter of billion dollars per execution. Wow!

Speaking of death, the Dolphins lost their starting QB for the rest of the year and are currently 0-3 with the improved Buffalo Bills coming to town Sunday. 

Speaking of death, it felt like  a slow death Tuesday for the thousands of people sweating in lines that stretched around the block at the REGJB because we again had a Monday off and two days worth of calendars crammed into Tuesday. We don't know what the Chief Judges are doing to address this problem, but lets approach it from another angle- WHAT EVER YOU ARE DOING IS NOT WORKING!! 

It still takes an hour to get into the building if you arrive at 8:45 and from what we saw today, many Judges are still not interested in addressing this problem. A/Cs were being issued like free martinis at a judge's conference. 

We don't know how to fix the problem, but we do know what it would take: make every Judge on a Tuesday with Monday off wait in the regular line to clear security and enter the building.   After an hour or so sweating with the hoi polloi, we are certain that our otherwise mild manner robe wearers  would raise hell and fix the problem. 

Speaking of high costs, how many people hours are wasted by having thousands of people wait an hour to get into the court house? 

And finally, the US and California are seeking extradition of 76 year old  film director Roman Polanski who in 1977 fled the US on the eve of his sentencing for having sex with a 13 year old girl. Lest you have forgotten the facts of the case, Polanski pled guilty to the charge and was awaiting sentencing.  The transcript of his plea is at the Smoking Gun site here. 

What do you think is an appropriate resolution in Polanski's case? 

Speaking of high costs, how much is it going to cost California to bring Polanski back and house him in protective security while this mess gets sorted out? 

See You In Court. 

OFFENSE INCIDENT REPORT

Item: Judge Julio Jimnez claimed last week that an ASA stabbed him in the back. The investigation continues.

From the O/I-

"

Crimes against Judges Division:

Stone Rock- CAJ Detective:

The victim is a hispanic male, in his fifties, known to wear a black robe at work and is a Judge at the REGJB- an area well known to this detective to be rife with violence, deception, scurrilous characters, torpidness and stolidity.

At some point last week the victim claimed to be a victim of aggravated battery by being stabbed in the back by a co-worker.

The victim accused a specific co-worker who appears to be a member of a gang known to this detective as "Yo Yo Yo SAO". Their known gang signs include raising the middle finger of each hand when asked to exercise discretion and two well known and notorious rap songs called "my supervisor said NO" and "Yo Yo Yo da SAO is IN DA HOUSE." The suspect refused to be interviewed by this detective and referred all questions to her attorney. The victim referred this detective to his statements from the bench and various news articles reporting the incident.

Evidence of the crime includes frequent contact between the victim and the suspect; a dispute over the resolution of a work related issue in which the victim claims the suspect requested that the victim write her supervisor a letter requesting a resolution to this issue. When the supervisor responded by refusing to allow the suspect to cooperate with the victim some sort of scuffle ensued with the victim later making the unsubstantiated claim of aggravated battery.

There are several witnesses to the underlying dispute which clearly provided the suspect with the motive and opportunity to stab the victim in the back. However, there is not sufficient evidence at this time to arrest the suspect for aggravated battery.

This officer was not present at the time of the crime. No weapon was recovered during the investigation of this case. This case remains open/pending."

COURTS CLOSED TODAY

Federal court is open.

The State courts in Dade and Broward are closed.

Exactly why are they closed again?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

See you in court tomorrow, unless it's some Buddhist holiday we're not currently aware of.

For those of you getting ready to blast us in the comments section, feel free to do so. However, know this: Our belief is that the court system should not be closed for ANY religious holiday. Anyone and everyone who follows a particular religion should be spared from working or attending court on any day their religious beliefs prohibit it. This is a country founded on the belief of tolerance of all religions, not just a special one or two. We just believe that when a government shuts down an entire court system in recognition of a particular religion, it crosses the line and violates the First Amendment.

And while we respect those who practice the Jewish faith and are fasting today and not working, Jews should be alarmed as we are that there is a sizable percentage of this country, and many Congressmen and women and senators who given the opportunity, would pass a bill stating that the United States Of America is a Christian County. Based on our founding principles and beliefs we are no more a Christian Country then we are a Muslim or Buddhist or Druid or Jewish country. We are a country that is supposed to tolerate ALL religions and recognize NONE.

FOOTBALL 2009 WEEK THREE

With a winning week Two under our belt, we're kinda like most NFL teams at this point: 1-1 and needing a win on week three.

Of course we're still south of 2K in the red, but steady and sure wins the race.

We like the Texans -4 at home over the struggling Jax Jaguars.

Texans -4 +1000.

We also are not convinced that the J...E...T....S... are for real. Gang green is giving three points to the visiting Titans. The question is what's wrong with Tennessee? We think it's the QB. Kerry Collins is a streaky kind of player and last year was his streak. We've lost every bet we've made on the Titans and against the Jets this year. Time to leave these guys alone, although we think the Titans will win today.

The best game today is the Falcons at the Cheaters. Can the evil genius and his pretty boy QB bounce back? We sure hope not. But who knows? Not us.

Who would have thought that the best 2-0 teams playing each other today would be the 49'ers at the Vikes? The guys in Purple are -6.5 at home. Based on Favre's play, that number seems a bit high, as the Vikes are looking to give AP about 25 touches on the ground. Lets throw a couple of Favres on the Vikes. Vikes -6.5 +200.

The Giants play the Bucs in Tampa and there's nothing to like about this game except the number: 45.5 For some reason the number has crept up from 42 meaning the money is going on the over. We like the under. Under 45.5 500.

Other games of note: The popular pick today is that the Lions get their first win since the Nixon administration. The Lions play the Redskins, who with a payroll of 20 billion still can't find a way to win.

And finally our hometown Fins travel out west to play the Chargers. Can't pick a team coming off a MNF game and a short week and then traveling to the other side of the country. The Chargers are hurting with LT on the sideline, and of course they have the second worst coach in the NFL. Norv "run on 4th and 2 against Ray Lewis" Turner. The interesting thing about the Fins game is that the number trended down from Fins +7 to Fins +5.5, probably on the announcement that LT was out. We will be watching to see how the Miami Wildcat works, considering Ronnie Brown had a monster game running it last week. Last year the Fins started 0-2 before turning it around, but they didn't have to travel out west after a Monday night game. We sort of like the Fins +6 if you can find it because we think the Fins are good enough to keep it close.

We wouldn't put a wooden nickel in these picks until we get hot and spot some trends. So far this year the biggest trends are that the Cheaters and the Titans have been awful and the Jets have been much better than expected. I missed all of these. But don't fret- there's still plenty of time to pay for that new 4 Stroke engine for the boat.

Suicide Pool: Last week showed you why this is tougher than it looks with six players going down for the count.

David O Markus, late of Wall Street Journal fame takes the Eagles; Ifitkar Memon : Ravens; Miguel De La Over: Vikes; Public Pretender: Ravens; Michael Feiler: Packers; Daniel Tidbitt: Ravens; Sexy Fan: Texans; Peter Sautter: Eagles; Rick Freedman: Ravens; 52nd Street Irwin: Redskins.

For those of you starting an intense 24 hours of introspection and fasting, have an easy fast and we hope you find what you're looking for.

Court closed Monday, see you Tuesday.

JUDGE JULIO JIMENEZ v. STATE

The Herald has the story here of the dust up between Judge Julio Jimenez and the SAO. The title links to the article.

Jimenez sought to have the state offer Defendant Dwight Bernard PTI. Bernard was a Northwestern Highschool principal and he was accused of official misconduct in connection with the allegation that he covered up complaints that a football player was having sex with a 14 year old student.

Jimenez wrote a letter to State Attorney Fernundle requesting that the prosecution offer Bernard PTI. Talk about getting involved in plea offers!!!! We can't even get a judge to offer a withhold and this guy's lawyers have Judge Jimenez writing letters.

The letter blew up in Jimenez's face when the SAO filed a motion to recuse.

Jimenez recused himself and then said ASA Angelica Zayas had (and we're not making this up) "Stabbed me in the back."

So there you have it- just a regular day at the REGJB.

A Judge writes the State Attorney and asks for PTI because among other reasons "he has a murder trial waiting". The State Attorney says (surprise surprise) "NO".

The Judge says a not guilty verdict is "likely".

The Prosecution files a motion to recuse.

The Judge replies "You stabbed me in the back."

Is this a dagger which I see before me,

The handle toward my hand? Come, let me clutch thee;

I have thee not, and yet I see thee still.

Art thou not, fatal vision, sensible

To feeling as to sight? or art thou but

A dagger of the mind, a false creation,

Proceeding from the heat-oppressed brain?

I see thee yet, in form as palpable

As this which now I draw.

Macbeth, Act II.

See? What a normal courthouse we work in.

"Fair is foul, and foul is fair."

Macbeth, Act I.

FRIDAY G20

Update: Everyone's favourite federal blogger mentioned in  the Wall Street Journal here. 

And no, as suspicious as he sometimes appears, Mr. Markus is not being accused of running a ponzi scheme. His blog was cited with approval in a WSJ article on the 11th Circuit argument this week on the Ben Kuehne case.

The answer to yesterday's blog quiz is that Tom Risivy was smiling because he was allowed to see his client at FDC despite the fact he was WEARING KHAKI PANTS!! Who among us hasn't decided to have a casual day when going to see a client in jail and thrown on a pair of comfortable Khaki's only to be denied entrance at FDC? But according to Miami FACDL President Hector Flores, Tom made it into the Magic Kingdom despite his sartorial selection.

Those of you who are federal practitioners know that FDC has a simple 1043 page rule book for seeing your clients and should you fail to follow any of the 1891 rules listed in the book, you will be denied entrance into the Magic Kingdom.

For instance, did you know FDC BOP rules frown upon an attorney seeing a client on any day that ends in "Y" in months January through December. Other days and months are fine.

Thats just one of the many helpful suggestions you will find in the FDC BOP rule book.

Other include:

Failure to strongly suggest your client accept a plea may necessitate the BOP recommending that your case be transfered to Judge Huck for a leisurely trial;

Carrying and displaying your "Dick Cheney fan club card" will get you priority seating once inside the Magic Kingdom;

Filing any motion to suppress may require the BOP to designate you "a trouble maker" and will require the BOP to suspend your visiting privileges inside the Magic Kingdom.

Feel free to include others in the comments section.

BROWEIRD

By now you know that the Feds have descended North Of the Border and started arresting politicians. Did you catch Acting US Attorney Jeff Solman's comments of something to the effect that there was NO cooperation with the the Broward SAO.

Can't you just see in your mind Mike Satz reprising the role in Casablanca and stating "I am shocked, shocked to find there is corruption in Broward"?

Dolphins.

Our Fins are 0-2 and heading out west to play an angry San Diego Charger team that is talented and has a chip on their shoulder because they could not score last week inside the red zone. For those of you that saw the Chargers call a running play on 4th and 2 with about 3 minutes left from the 20, down 5, remember that we've been telling you for two years the Chargers have the second worst coach in the league behind Vanilla Phillips.

It's the start of another long weekend. For those of you engaged in religious introspection, have an easy fast on Sunday-Monday. For those of you not engaged in a conversation with your maker, have a nice weekend and don't forget those suicide pool picks.

3rd DCA ROUNDUP-JUSTICE IS CRUMBLING EDITION

UPDATE: Why is Tom Risivy smiling? (Hint- it has nothing to do with his shoes this time)

Give up? Email the Miami FACDL President to get on his email list and find out.

hectorflores@barzeeflores.com

****see below****

Wednesday is Funday at the Third DCA.

Depraved Mind? Yup. Senior and former Chief Judge Schwartz may not necessarily know how to specifically define a "depraved mind", but like Potter Stewart ala pornography, he knows it when he sees it, and he minces no words in describing it in

Bonilla v. State:

Rejecting the appellant’s primary position on appeal, we conclude –

notwithstanding the very sketchy nature of the record as to the surrounding

circumstances – that the singular fact that the defendant drove a butcher knife five

and three-quarter inches into the victim’s chest, reaching his heart and causing his

death, was itself sufficient to establish the “depraved mind” element of second

degree murder, of which Bonilla was convicted after a jury trial.

No Good dead goes unpunished by the Third: As Judge Eig has found out in State v. Armenteros, in which the 3rd bounced back a plea below guidelines based on "some deal" Eig had with the defendant and not the State. Now Eig has to provide written reasons for the below guidelines plea. You know what we say: Good for you Judge Eig! We can just imagine the state standing there, arms crossed, whining "Judge you can't do that. The Chief of the assistant chiefs who supervise the chief of the chiefs says so."

Keep making deals and icing out the State Judge Eig! Good for you. The Governor appointed you because he had faith you knew more about what is best for the people who appear before you then some 25 year old who can't make a phone call without clearing it with six dozen chiefs. (Just put something in writing justifying the downward departure next time.)

Judge Murphy got reversed on a downward departure in Berry v. State, but we applaud the effort.

Wall Of Shame: Judge Adrien (no surprise there) in Taylor v. State; And Judge Miller in George v. State;

****picture of North Dade Justice Center's crumbling facade courtesy of loyal blog reader Dan Lurvey.

YOUR NEXT LABORER IN SEARCH OF TRUTH

Update: Speaking of laboring for truth, our favourite Federal Blogger was at the 11th Circuit Hearing today on the Government's appeal of Judge Cooke's dismissal of the money laundering count against attorney Ben Kuehne. His blogging is here.

The argument apparently went well for Kuehne, with the government DOJ

lawyer having to admit that under the government's view, approximately 4 billion people on earth have committed some form of money laundering. Not really- but the government did back themselves into another corner. Again.

You know what this looks like to us? This looks like the government realized a long time ago that they blew this case and should have never charged Ben Kuehne. But now they've dug themselves such a deep hole they can't get out of it, so they're going to go down swinging and try and take Ben Kuehne with them just on the stress and damage to his practice this ridiculous and outrageous prosecution must be having on him.

Real lawyers- not coddled federal DOJ appartchiks- would have manned up to their mistake a long time ago and apologized to Ben Kuehne and dismissed the case. But never mistake those DOJ pretty boys and girls for real lawyers.

Congratulations to Judge Antonio Arzola of the County Court for his promotion to Circuit Court.

Did you know that Judge Arzola once clerked for now Chief Judge Federico Moreno in Federal Court?

Did you know Judge Federico Moreno got his start on the bench right in our humble little building as a County Court Judge?

Did you know whilst a County Court Judge, Federico Moreno once signed a bench warrant for a Dolphins wide receiver, and then is reported to have remarked or written on the warrant "don't arrest on Sundays"?

Best of luck to Judge Arzola as he joins our never ending "Labor for the the Truth", and while we have little experience with him where he has been, we truly mean it when we say.....See You In Court Judge Arzola.

Courtesy of the Broward Blog, here's a link to the Sun Sentinel which has a You Tube video posted of your Fort Lauderdale Police at work. The words "safe", "professional" and "non-violent" would never be associated with that gang that patrols the streets North of the Border.

TUESDAY TIDBITS

UPDATE: People are reporting County Court Judge Antonio Arzola has been tapped for the open Circuit Slot.  If this is true, congratulations to Judge Arzola for a well deserved promotion. 

Former NFL running back Herschel Walker is becoming an MMA fighter at age 47. We thought you needed to know that.

How come the Fins are the only team in the NFL that can make the Wildcat formation work? Not that we're complaining. It was fun to watch the game last night on our new LED TV whilst safely ensconced in our home. Ronnie Brown was a monster and this LED technology is the real deal.

Memo to Chad Pennington: a TWO minute drill at the end of the game means a few things:

1) Hustle! Move fast. 2) When your two minutes are up and you are behind, you lose.

Pennington acted like it didn't matter.

Chinese Muslin Uighurs are a diverse ethnic group of Turkish origin. There are 13 Uighur Muslims being held at Guantanamo Bay Naval Base. The US Supreme Court has scheduled a review of the Uighurs petition to be released during their first court conference on September 29, before the Court formally opens its session the following Monday.

We can't get a hearing before Federal Magistrate on a motion to suppress, but 13 Muslim Uighurs can get the US Supreme Court to consider their plight. Is this a great country or what?

We think the feedback on new Circuit Court Judges Yvonne Colodny and Migna Sanchez-Llorens has been mostly positive. What say you?

If you think (like we do) that Paul Giamatti is one of the best all around actors currently working, then go see Cold Souls. You will like it.

We like saying "Uighurs". It's kind of catchy. Try it.

Exactly why are State courts closed next Monday?

Yes we know it is the holiest day of the year for those who are observant Jews. But wouldn't the better option be to just liberally grant continuances because of the religious holiday for any lawyer who requested it?

These Mondays off throw the whole system into a tizzy.

The Courts in Dade are stretched to the maximum. Layoffs combined with increasing case loads have created more work with less time and people to do it. Every day should be utilized and there are enough people who don't celebrate the end of the High Holy days to allow those courts to stay open and go about their business.

Are the courts in Pahoke County, or Lee County, or Wakulla County, or Suwanee or Dixie counties closed as well?

Just a thought.

See You In Court.

ARE YOU READY FOR SOME FOOTBALL!

Are you ready for some football?

We are.

Go Fins!

FOOTBALL 2009 WEEK TWO

PICKS UPDATE: With the over in the Ravens/Chargers now a win, we are +250 for the day, and we will roll that on the over 44 in the Gints/Cowpokes game.

UPDATE: SUICIDE POOL- UPSETS GALORE: RUMPOLE- OUT; Weisman/Foster- OUT; Feet of Clay Kaeiser- OUT; Jimmy the Greek- OUT; LAST YEAR'S CHAMP- Cary Clemmons-OUT.

This is the bounce back week. This is the week we get back to basics and get back into the game.

We like the Titans coming off the ten day lay off to pound the hapless Texans. Titans -6.5 +600.

INJURY UPDATE: Annoying player Wes Welker is out for the Cheaters (unless they have lied, again) and that makes us kick our pick up 100 Ryans to 200 on the J...E...T...S..

The J...E....T...S... are 4 point home dogs. We like the Jets to keep it close. J...E....T....S..+4 100, and we really like the under 47 +200.

Picks Update: We lost the Titans -650; won both our Jets picks +400, so we're -150 for the day. We're going to watch the Ravens/Chargers over which we boosted to +400 and then probably lay some Vanilla Phillips on the Over 44 on the Cowpokes/Gints game. Probably 500 or so to get us in the black today.

Perhaps the best game of the week outside of the Dallas/Giants matchup in Texas is the Ravens/Chargers game in San Diego. The Chargers are without their RB LT, but have an able backup in Sproles, and the Ravens, despite all the talk about their tough D, have a more than able gunslinger in Joe Skinny (Flacc0). We can't figure out who wins this game, but we like the over 40 +100.(changed at game time-see above)

SUICIDE POOL: Rumpole: Titans; Fake Alex Michales: Cowboys; David O Markus: Falcons; Miguel De La Over: Falcons; Wesiman/Foster: Packers; Cary Clennon: Packers; Rick Freedman: Redskins: Daniel Tidbitt: Redskins; Dan Lurvey: Falcons; Ifitkar Memon: Vikes; Peter Sauter: Redskins; Sexy Fan: Broncos; Feet Of Clay Kaeiser: Packers; Jimmy The Greek: Titans; and in the most surprising pick of the Week, the Rank Master chooses the Raiders. This is strategy. If the Raiders pull out a win, and most experts have them wining only 2-5 games this year, the Rank Master will have an edge on the rest of the field by having eliminated a weak team from the list of teams. Good luck RM, the Raiders didn't convince me last Monday night.

Who's going to the Monday Night game? Should be a fun time, but a tough game for the Fins. Remember that last year the Fins started out 0-2 before unveiling the wildcat against the Cheaters.

FOOTBALL TOMORROW

SUICIDE POOL PLAYERS- Get your picks in. Week one saw two deaths- The Public Pretender and Francisco Rodriguez pick the Bengals only to suffer a heartbreaking last second loss to the Broncos. Better luck next year, and for the third year in a row we have had at least player out on week one. This is harder than it looks folks.

Players: please title your email "Week 2" etc for the appropriate week so I can better keep track of the picks.

So far for Week Two: David Markus, who had to have good week in his Fantasy Week last week since he has Adrien Peterson, has the Falcons, along with Miguel De La Over. Cary Clennon and the Weisman/Foster legal team have the Packers while Rick Freedman and Daniel Tidbitt have the Redskins. So far Rumpole likes the Titans coming off of ten days rest to bounce back and win at home.

Last week will go down as Black Sunday and Blacker Monday betting wise. We won one lousy 150 pick on the Falcons over our hometown Dolphins, and on Monday night alone we were down 1100 Tebows. This is an awfully deep hole to dig out of, and we're going to do it cautiously. One week at a time, a few carefully chosen locks at a time.

We're looking very closely at Denver at home -3 over the hapless Browns; the aforementioned Titans at home over the Texans -6.5, and the under 47 with the Cheaters at the J..E..T..S.. and we also may take the Jets +4 as a home dog. There are 4 home dogs this week, the Jets, the Lions +10.5 against the Vikes, Da Bears + 3 against the Steelers, and our Fins +3 against the Colts. Finally the Over 40 in the Ravens/Chargers clash looks intriguing especially since this is one of the best games of the week.

Anyway, we'll see you tomorrow looking for a few winners to ge back into the game.

The Jewish Service Heard Round the World: Live from Germany

Tonight marks the beginning of ten days of introspection for those who practice and follow the Jewish religion. In honor of the Jewish New Year, Rosh Hashanah, we bring you this amazing story.

THE SCENE: The Battle for the control of Aachen, Germany.

THE DATE: October 29, 1944.

Max Fuchs, now an 87 year old retiree living in New York, had been studying to be a Cantor before joining the First Infantry Division.

When it was decided to conduct and broadcast a Jewish Religious Service on German soil, Mr. Fuchs was asked to sing at the battlefield service. Mr. Fuchs recalled that he chose two songs because they were familiar and they were quick. If you listen closely during the closing song at the end of the video, you can hear artillery in the background.

Every day during WWII American soldiers engaged in simple acts of humanity that made it crystal clear why we were fighting. It is to honor their memory, and in the spirit of this season of renewal that we make this post.

A COLLEAGUE ASKS FOR HELP

We received an email from REGJB attorney Debra Cohen.

She asked us to summarize it.

Basically she wants everyone to know that she has been suffering from diseases related to a life time of smoking: (from the email) "The reality is that I have COPD, chronic bronchitis and emphysema. In 2007 I was hospitalized with massive pneumonia and through the grace of g-d I recovered."

Ms. Cohen was worried that attorneys and judges who may have seen her while she was sick may have concluded that her appearance was a result of illicit drug use instead of the problems with her health.

In response to her lifetime addiction, Ms. Cohen has, through counsel, filed a lawsuit against Phillip Morris and she has learned that attorneys and others from the Defendant(s?) in the lawsuit have been snooping around and asking questions about her.

Ms. Cohen wants her colleagues to know that while her health problems have caused her tough times, through the grace of her faith and her doctors she is back, working as best she can, and she appreciates her friends and colleagues good wishes.

Rumpole notes: As a whole, we attorneys and judges lead a good life. And yet all of us at one time or another are faced with the problems and obstacles that life places in our way. The measure of a person is not whether we have problems and whether we fail- we all do. Our true measure is whether we get back up off the mat, dust ourself off, smile, and face another day.

See you in court, thankful for small blessings like good health.

3rd DCA ROUNDUP

Judge Sayfie joins the hall of shame here for a 3.850 case. Same song, different verse.

Ditto Judge Pinero here and here.

And Judge Rosa Rodriguez here.

Judge Ward's denial of a 3.850 in Henad v. State was upheld. Ward reasoned that the defendant who took a 5 year prison sentence when faced with a 15 year minimum mandatory in a case that carried a very high likelihood of conviction was not believable when he argued that if his attorneys had told him he would be deported he would have turned the plea offer down. Can't really argue with that decision. Better to be a free man in Colombia then serve an extra ten years in the US.

Pretty quite in the 3rd DCA in criminal cases the last two weeks.

SAO Firings: It's a bit early as the holiday season is not yet upon us, but the powers that be are cracking their collective knuckles and warming up over at the SAO for one of their favorite activities- trying to crush the careers of young lawyers during the Christmas season. Any way, as rumors fly over the firing of a division chief, we have a pretty good idea what has happened, but if anyone wants to confirm it by sending us an email, we can run with this quite a bit further.

We have been out of town for 10 days now and the late Senator Ted Kennedy's autobiography True Compass is turning into a very compelling read and a good companion in this quiet southern town we find ourselves in. We never agreed much with Senator Kennedy's politics, but his compassion and fond memories of his family as a boy growing up under remarkable circumstances reveal him to be a very decent human being. He had more than his share of tragedy and of course he caused some himself. But this book is an open and honest heartfelt account of the good and the bad and we see the Senator in a different light. We highly recommend True Compass.

THE TRIAL TAX

Here's the problem: You go to court on a third degree felony or a misdemeanor case and the state makes an offer and the attorney asks the court to make a lower offer and the court declines because if the court makes an offer and it is rejected and then the case goes to trial, the judge can't sentence the defendant to anything higher because if s/he does it is a vindictive sentence.

The judges have all had this scenario beaten into their judicial brains between margaritas and shrimp cocktails at their judicial "seminars".

OK. So be it.

But lets think about this:

What is really happening is that by declining to make a plea offer the Judge is doing two things:

1) Abandoning their ability to review a case and exercise discretion to keep prosecutors in check. Lets say for some reason prosecutors in Judge X's division decide to offer 30 days jail on all first offense marijuana possession cases. A judge who has this policy is allowing the prosecutors to run roughshod over the defense, knowing that most defense attorneys don't want to try a case.

Now, why do most defense attorneys not want to try a case? There are many reasons from incompetence to the fear of a greater sentence after trial. And there's the rub.

2) When a judge declines to get involved in plea negotiations for fear that the judge will not be able to sentence the defendant to a higher amount after trial, what the Judge is really saying is that "I don't want to offer you a fair sentence now, because I want the right to slam and punish your client if you lose the trial."

Something is so very wrong about that.

The Supreme Court of Florida has emphatically said that "the law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional."

Wilson v. State, 845 So.2d 142(Fla. 2003) citing U.S. v. Jackson, 390 U.S. 570 (1968).

And yet, every day in almost every court of this State Judges somehow convey to defendants and their attorneys that the sentence may well be significantly higher if the defendant loses at trial.

Lets go back to our scenario: The attorney asks the Judge to review the case and make a plea offer. The Judge declines because any offer s/he makes will limit their ability to give a higher sentence at trial. And the reason they give for this nonsense is that they learn more about the case during the trial.

Horse-hockey! That explanation is disingenuous at best. Lets go back to our example. First offense possession of marijuana. Residue amount. Prosecution offers 30 days. A-form is 6 sentences long. What more about the case is the Judge going to learn at a one witness trial that both lawyers can't proffer? Lawyers are paid to communicate facts. In a more serious case- say a manslaughter- after several motions and hours and hours of discussion and argument, isn't the Judge in as good a position as they will ever be to evaluate the case and make an offer? And if the offer is what they think justice mandates, make the offer- and if the defendant rejects it and goes to trial and loses, why not then impose that same sentence?

The only real reason we can see that Judges don't do this is that they lose their ability to punish a defendant for going to trial. And that is wrong.

It's about time we abolish the trial tax and make the system work. And the more cases that are tried, the better the system works.

See you in court, trying cases.

MORE ON ROBERT CARNEY

UPDATE ON CARNEY:

Thanks to the Broward Blog for doing all the heavy lifting here. 

Here is the link to the 1999 11th Circuit Opinion detailing more of former Broward prosecutor Robert Carney's malfeasance;

And here is a pertinent part of the decision copied from the Broward Blog: :

Purvis v. Satz (Warning: Highly Offensive Content) - 

"In May of 1985, shortly after sentencing, and while Purvis's direct appeal was pending, the State Attorney's office (and all of the defendants named here) received information indicating that Robert Beckett, Sr., a close associate of the victim's ex-husband, had committed the murders. Michael Satz, the State Attorney, and Barbara Barton, his investigator, conducted some additional investigation and learned that Robert Beckett, Jr.'s girlfriend had told Colorado authorities that Robert Beckett, Jr. had implicated his father in the murder of Susan Hamwi. Notwithstanding this information, Robert Carney, a prosecutor in the State Attorney's office, instructed Barton to close the investigation.  (Rumpole opines: In English, that is what's known as both a cover-up and in my book guilty knowledge of keeping an innocent man in prison to avoid the embarrassment of your own mistakes.) At that time, none of this exculpatory information was disclosed to Purvis, his guardian or his attorney.

Purvis remained imprisoned for approximately nine years. Ultimately this exculpatory information was discovered and a subsequent investigation established that Purvis was innocent. On joint motion of the State and Purvis, a circuit judge set aside Purvis's conviction in 1993, and Purvis was freed."

Rumpole notes: Shameful. Just Shameful. How is this man still a Judge? 

From Bob Norman's column, "The Daily Pulp" comes this blistering article on former Broward ASA (and Broward Circuit Judge) Robert Carney and his involvement on prosecuting three innocent men: (the title links to the article which is a must read)

JAABlog quotes Broward Public Defender Howard Finkelstein on Carney:

"If I was Judge Carney," Finkelstein said, "I would spend every day of my retirement for the rest of my life in church praying for forgiveness for the innocent lives I destroyed as a prosecutor."

and

So DNA tests seem to have exonerated another man wrongfully convicted by the State Attorney's Office for murder in Broward County. That makes at least seven of them.

Anthony Caravella, 41, has been locked up for the 1983 murder of Ada Cox Jankowski since he was 15. There never was any good evidence in the case against him, just a jumbled series of confessions he gave in response to police pressure.

The prosecutor in the case was Robert Carney, the same man who also had at least a hand in prosecuting three other men wrongfully imprisoned on murder convictions: Frank Lee Smith, John Purvis, and Christopher Clugston.

and finally this summary:

Hopefully Caravella will escape Frank Lee Smith's fate -- death in prison -- and will soon see freedom. For any hope of that, he can thank Broward County Chief Public Defender Diane Cuddihy, who fought hard for the DNA tests. Sun-Sentinelreporter Paula McMahon gives her newspaper some of the credit too by pointing out that the Sentinel referred Caravella's brother to the Public Defender's Office back in 2001.

Actually, McMahan and former Sentinel reporter Ardy Friedberg both did fine work reporting on those cases. Everyone involved deserves to be commended.

Carney, though, might want to start following Finkelstein's advice right about now.

Great article. Imagine having not one, not two, but three innocent men that were wrongfully convicted on your conscience because of your incompetence. There must be something in the water North of the Border. I have never seen a courthouse more infected by an atmosphere of fear and incompetence. What a horrible place to practice law.

See you in court.