COMMENT OF THE YEAR

This comment, left at 8:13 on the "Wicked Wednesday" post has engendered a lively discussion. So this comment is the comment of the year (so far).

Anonymous said...

To 10:35 pm: It's hilarious when former ASA's tell us county ASA's how to do our jobs. If you cared so much about the job you would not have left. Oh, maybe you didn't get the message when you interviewed that you were going into public service and therefore might not be able to afford BMW SUV's on an ASA salary? Well, why don't do your own jobs and defend your loser clients and quit "helping" us.

Rumpole says: It's an interesting comment reflecting the inherent tension between those newer lawyers tasked to do an almost impossible job and those more experienced lawyers who now think they know it all. Much like the conflict between Republicans and Democrats, both sides think they're right.

The writer of the comment further reflects the dedication to public service that is inherent with working in the State Attorneys Office. But the inquiry does not end there.

The writer shows his/her inexperience/ ignorance with the "BMW" and "Loser clients" diatribe. Just as all prosecutors are not out for bloodlust and to throw everyone in prison, so is it equally untrue that all criminal defense attorneys are Porsche driving cretins benefiting from getting child rapists out of jail on ridiculous technicalities.

Most of our colleagues in the criminal defense bar are as equally committed to justice as prosecutors. And despite fantasies to the contrary, they earn about as much as a mid-level prosecutor with far more headaches unrelated to law.

Billing clients/collecting money- supervising employees, fending off unscrupulous bondsmen hustling for the worst lawyers in our community, filing payroll and tax forms. The responsibilities of defending a client are equal to prosecuting one, and yet most small practitioners also have the additional burdens of running a small business. Suffice to say that it is not all topless models on speed boats off of Miami Beach on Saturdays, but rather a trip to Metro West followed by a final revision of that brief that is overdue before calling it a day at 6pm instead of the 8 or 9pm quitting time that occurs on many weeknights.

But the comment was thought provoking to say the least, so it deserves recognition as fulfilling what we see as the promise and potential of our humble blog.

Final thought of the day: Not since Moses came down from the mountain has a tablet generated as much controversy as Apple's new IPad.

See You In Court On Monday.

TOUGH NEWS THURSDAY

Word reaches us today that Judge Amy Karan has resigned from the bench effective January 31, 2010.

Many of you know Judge Karan has been battling Parkinson's disease and she needs to spend more time working on her health.

This is a tremendous loss to the Bench and to our community.

We can only hope and pray that her condition stabilizes. Judge Karan is bravely fighting this terrible disease. She needs our support and prayers at this difficult moment in time.

Godspeed Judge Karan.

WICKED WEDNESDAY

Trial woes continue for the battered and beleaguered State Attorneys Office as the first Not Guilty of the week comes in from a PRO SE Defendant in a DUI trial before Judge Luise Krieger Martin.

More later.

You know it, you love it, you wait all week for it: The 3rd DCA Roundup:

A very light week at the 3rd DCA criminal cases wise. In fact all we have is an entry on the wall of shame:

Judge Soto joins the wall of shame here in Montgomery v. State.

Scott Rothstein pled guilty today. The Daily Pulp has it, and the bizarre interviews his wife Kim Rothstein has been giving here.

The juiciest piece of information that came out of the hearing came from Attorney Bill Scherer. Scherer is representing numerous victims of the Ponzi scheme. Scherer confidently told Bob Norman that in the coming weeks there will be "20 Rothstein related arrests."

Wow. That cannot bode well for the former RRA partners.

Given the events of the last two years, isn't it time we change the name of these schemes to "Madoff/Rothsteins" ?

See You in Court.

Coming soon: Rumpole gets under the skin of Justice Scalia. Exclusively here, on your favourite South Florida Legal Blog.

TERRIFIC TUESDAY

Judge Tunis starts the penalty phase in State v. Calloway. Calloway stands convicted of the horrific execution murder of FIVE individuals in a Liberty City Apartment over 13 years ago. Calloway was convicted in July of 2009. The Herald article is here.

Fun with Email Addresses?

Long ago we placed former attorney Jack Thompson's email address on our spam blocker, thus saving us about five to ten unwanted emails a day. However it appears some of you actually read his rants, and a few of you emailed this paragraph from a motion he filed to recuse EVERY Federal Judge in the Southern District of Florida:

7. Attached hereto is Exhibit A, which is the first page of the court’s docket sheet in Case No. 07-21256.

Note that Thompson’s email address has been supplanted by some jerk within the District Court with a new faux email address for Thompson:

disbarredattorney(at)flsd.uscourts.gov. How cute. How absolutely stupid as well

The more things change.....

TWO MORE WEEKS OF FOOTBALL: and then you go back to spending your Sundays at Home and Garden Shows or Fairchild Tropical Gardens or wherever you married guys get dragged to in the off season.

Who's going to the Pro Bowl at newly named Dolphin's stadium this Sunday?

Not us.

What's the latest price on Super Bowl Tickets? If the Jets had made the big show, you can bet ticket prices would be about 30% higher. You know how those obnoxious New Yorkers like to flaunt their Wall Street bucks.

JUST ANOTHER MANIC MONDAY

Monday in the REGJB. 340 days and 48 weeks left in the year. Plenty of time for the SAO to get back on track.

Congrats to the Saints and Colts. The two best teams in the league will meet in Miami in two weeks. Get your exclusive Super Bowl tips here, including our patented "coin flip lock" which is 1-1 in the last two years.

Sad word reaches us that friend and colleague Jack T. Littman passed away. Want to read the obit of a great NYC trial lawyer? Click here. Jack was the type of defense attorney you called when your client was charged with murder and you couldn't think of a defense. Jack Littman represented several high profile clients in New York murder cases and died this past weekend.

Justice Stevens: The Court's liberal lion in the winter of his discontent. The Times Article is here.

Anybody check out North Of the Border lately? They have more announced candidates for judicial elections in which an incumbent judge is being challenged this year than probably all previous years combined. That's a lot of lawyers for current judges to snub and treat badly for the rest of their career. Pretty soon those Broward Judges are going to need a cheat sheet next to their bench:

North of the Border Official Cheat Sheet. (c) Ross Legal Retaliation Services.

Check all that apply:

[ ] Miami Lawyer?

[ ] Ran against a sitting judge?

[ ] Fights for client?

[ ] Don't recognize the lawyer?

CHAMPIONSHIP SUNDAY

Four teams, two games, a trip to the Super Bowl and Sun Life Stadium is on the line. For two teams, their Sunday will be akin to the week the SAO just suffered through. For two teams, the chance at an elusive championship.

The problem for us today is that as a fan, the two teams we want to win are not the two teams you should be betting on if you want to make some scratch and score a SB seat.

First up...

J.E.T.S...JETS JETS JETS vs. Peyton Manning.

In almost every phase of the game these surprising Jets are the better team. The Jets have a better defense, a better running game (the Mannings have the second to worst running game in the league) and are an overall better rounded team. That being said, Peyton Manning is an unprecedented game changer. If there's one player in the remaining four teams who can carry his team all by himself to victory, it's PM.

The Colts are a TD favorite at home and if you want to bet, bet the Colts.

For us, because we are fans of Rex Ryan and because we like nothing better than a punishing running game and a hard hitting defense, we're going to call 52nd Street Irwin who helps set the line at Caesars and tell him to take 200 units from our account and put it in the Jets to win at +120 ( we win 120 for every 100 bet, no points taken). Just for fun. Because as we're eating our chicken wings and drinking our beer today in front of our new 60 inch flat screen, we want to be able to root for the team we have a few Ryans on.

Favre versus The Saints.

The Saints are 3.5 favourites at home over the Minnesota Favres. This is a great line. Jump on the Saints. They seem unstoppable. Put 2000 Brees on it and get yourself a Super Bowl Ticket. For us however, we want to see Favre in the big show one last time. We want to see him connect with Percy Harvin in the 4th Quarter down by 13, and then come back and hit Rice on a 4th and 20 for the winning TD. So we're eschewing the points on this one as well, calling 52nd Street Irwin and telling him to take another 200 units and put them on Favre at +120, just because when we're eating our Pizza and breadsticks tonight, with an Argentinian Cab, we want to be able to root for the team we have a few Harvins on.

For some reason we always gain a few pounds in January. Must be the weather.

WEEK IN REVIEW

This past week shaped up to be a difficult one for the State Attorneys Office. All we heard were not guilty verdicts- from the Roscoe Parrish in DUI court, to a NG in Domestics and a few NGs in the REGJB. Any of those attorneys want to step forward and take credit?

Any Harvey Baxter reference bears repeating- and we received this one in the comments section yesterday (edited a bit here- the full comment is in the last post's comments section.)

Almost North of the border is a little courthouse formerly known as the Harvey Baxter Justice Center (not really but he was a character) but now simply NDJC. The purple robed one, Sheldon Schwartz, embraces a ridiculous number of criminal misdemeanor cases from several municipalies including N. Miami, Surfside, Aventura (City of Excellent Photos of you running the red light), Bal/Bay Harbor, etc...
I say embraces because he truly administers Justice in a manner entirely consistent with the Constitution of the United States and would make John Adams smile. He patiently tries dozens of cases at Bench daily without a hint of vindictiveness toward any party. He will gladly sustain his own objection if the State of Florida attempts to admit inadmissible evidence and will similarly slam a defendant deserving of his wrath. He sees the little old Jewish lady who "forgot" to pay for a blouse at Macys and the urban ghetto youth charged with marijuana possession. He deals with all in a respectful, yet stern, manner assuring respect for the bench which he clearly recognizes is larger then himself. ... He will equally take the time to explain to a victim the impact of a decison and show compassion for a deserving defendant who simply made a one-time mistake.... He makes it look simple. Rock on Shelly!

Here's a lesson for life: don't have an affair. If you do have an affair don't have one with a Ms. YaVaughnie Wilkins. If you do have an affair with Ms. Wilkins, expect it to end up on various billboards in Manhattan. The story of the affair between Charles Phillips (President of Oracle and senior economics advisor to the President) is here. Ouch!

Here's a link to the video.

Championship Sunday tomorrow!

3RD DCA ROUNDUP 2010 EDITION & ROSCOE PARRISH NOT GUILTY

UPDATE: Judge Langer writes in regarding the decision we summarized below:

Lester Langer said...

The Jass or Jasp program is not a state run program. Therefore it is not a DJJ program but is run by the county and the State Attorney's office. As I judge I can suggest, beg and try to convince a party to accept a diversion offer but I cannot impose it as part of a DJJ sentence. I do not beleive that is legally permissible when I made my ruling. I also do not think I could just dismiss the case because the State chose to go forward. If the 3rd DCA is now telling us, Juvenile Judges it is now state law that it is permissible to sentence a child to diversion, I think that is great. It now gives juvenile judges another option in our tool box which I did not think existed before this decision. This was not a trial tax or anything like that. I tried to the best of my ability to get the case resolved in the child's best interest. The facts based on the testimony showed she committed a battery. I sentenced her according to the law of the state as I understood it. Now it appears the 3DCA is telling all judges that we can sentence someone to diversion at least in juvenile cases. Bravo.

Lester Langer

Rumpole responds: Bravo to you Judge Langer!! This is why this blog works and is valuable. An important issue was raised, and we have now heard from the Judge involved. His response is reasonable and his embracement of diversion for Juveniles is applauded. His explanation re: the trial tax is reasonable and we accept it. Judge Langer has never been known as anything other than a reasonable and committed jurist dedicated to the Juvenile Division.

Here's our first 3rd DCA roundup for 2010: But first a word from the Colonel Of Court Court on the acquittal at trial today of NFL star Roscoe Parrish:

The Colonel: All right soldiers, take a knee and gather round.

The scene was Courtroom 5-1 as two (countem- 2) DUI Chiefs faced off against Broward defense attorney Adam Swickle and Dade lawyer Frank Garviria who successfully defended former UM start and current Buffalo Bills standout Rosco Parrish in a DUI case before Judge Miranda.

The February 17 ,2009 stop occurred on the McCarthur causeway and had all the usual Miami Beach DUI suspects/cops piling on for overtime. Officer K. Cosner was the arresting officer, and we have intelligence reports that he folded under a long and difficult cross examination by Swickle. Parrish was found not guilty of the DUI charge and unfortunately for him there is now nothing preventing him from returning to the hapless Bills.

Dismissed! And remember, there's gold in them there misdemeanors.

Thank you Colonel. First up is the TRIAL TAX, Juvenile version.

In TR v. State, TR was found guilty of battery by swinging her lunchbox into a fellow student in response to an imprudent remark. (Have we really come to this now? Circuit Judges siting on juvenile cases involving battery by a lunchbox over a bus stop scuffle? No wonder why people think lawyers are out of control.) Anyway, the battery having been proven, Judge Langer proceeded to sentencing and refused to impose something called "Jass" which is we guess is a diversion program, because as the state argued, she went to trial and lost.

This is what is known as the trial tax, and it strikes at the very heart of our justice system. If defendants went to trial secure in the knowledge that if they lost they would only be punished for their conduct and not for having the temerity of actually forcing the system to work, then our system would be a hell of a lot more fairer. Too many lawyers talk clients out of trials because of the possible penalties a judge could impose for going to trial.

Back to Judge Langer and Lunch boxes. TR appealed on the issue of the sentence and Judge Shepherd admirably wrote against the trial tax: Juveniles have a constitutional right not to be unfairly penalized for the assertion of innocence and demand for trial. A.S. v. State, 667 So. 2d 994, 995-96 (Fla. 3d DCA 1996) (“‘The law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional.’”)

Robinson v. State: Judge Leonard Glick catches a reversal in retirement over imposing consecutive 30 yr sentences AND sentencing the defendant as a habitual offender. The Florida Supreme Court has long held a trial court is not authorized to enhance both the defendant’s sentences as a habitual offender and make each of the enhanced sentences consecutive when they arise out of the same criminal episode.

What is a single criminal episode? Glad you asked: Generally, the courts have considered whether separate victims are involved, whether the crimes occurred in separate locations, and whether there has been a temporal break between the incidents.

That's all for now. This Commonwealth is abuzz over the results of the election yesterday, but we can report this: this was mostly about jobs and the economy and not health care as Massachusetts already has universal health care for its citizens (something Republican Governor Mitt Romney signed into law.)

See You in court.

CLEARED!!! and ELECTED!!!!!

Many of us know the problem: We have a client who is difficult, perhaps obstreperous, and doesn't always do what we want them to do.

So congratulations go out to Brian Tannebaum for his victory over the Florida Bar.

Word reaches us today here in the frozen north, where they are also having a senate election, that Tannebaum was the victor over the Florida Bar in their relentless and continuing prosecution/persecution of defense attorney and courthouse legend Alexander Michaels.

Congratulations to Alex and Brian.

Sorry for the delay today but the craziness over the senate election here has crashed the internet in the hotel we are staying in.

BROWN BEATS COKLEY!!!!

The latest news as of 9:40 pm tonight is that Republican Scott Brown has pulled off the miracle upset and beaten Democrat Martha Coakley in the election to replace the seat liberal Senator Ted Kennedy held for the past 49 years.

A Republican Senator from Massachusetts. Who would have ever believed that was possible?

Query: When was the last time a Republican held a senate seat from Massachusetts?

Of course the larger issue here is that the Democrats have just lost their 60 seat filibuster proof majority. Under Massachusetts law Brown cannot be seated before January 29, 2010. So the question is : does the Obama Administration jam through the health care plan before Brown can stop it, or does the President accept the will of the people of Massachusetts who well knew that a Brown victory could stop health care reform?

Martin Luther King, Jr.: I Have a Dream

I think what I take most from this speech every time I hear it, is the declaration that "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

That sentence is the quintessential definition of the ideals of America and the American character as it should be and as it often (but not always) is.

We are defined by our greatness and our highest ideals and those who lead us there. It is why I am and always will be optimistic about this country.

This video is 11 minutes and 51 seconds. It's more than worth the investment of time.

See You in court tomorrow.

PLAYOFF SUNDAY

UPDATE: 33-3 Vikes. I just can't even tell you the money I have made in the last decade betting against the cowpokes in the playoffs! It's like printing money!! Now as to game two, I stand by my pick but must tell you I find myself rooting for the Jets because I like their coach.

UPDATE: Favre to Rice for their second TD hookup today. In the second quarter it' Vikings 14-cowpokes 3. OK-everybody now: "Goodbye Phillips, Goodbye Romo, Goodbye Phillips, your coaching is Vanilla."

Two more big games round out this playoff weekend. 1-1 yesterday and as the alert commentators were quick to point out, a price is paid for betting against Peyton Manning.

The evening matchup is the J....E....T....S against the San Diego Chargers.

We've said before that the Jets are built for the playoffs, but the train ride ends here. The Jets backed into the playoffs by being lucky enough to play their last two games against two teams that had locked up playoff spots and didn't need to win and rested their starters. We give the Jets credit for taking it right back to the hapless Bengals last week, but remember...they're the Bungles....err....Bengals. Enough said.

While we don't like the Chargers Coach, this team has too much firepower to lose. There is only so far a rookie QB can take a playoff team, and while the Ravens Flacco took his team last year to the Championship game as a rookie, this Jets team is not the Ravens. True they are built in the image of the Ravens (by the Ravens former Defensive Coordinator) but they just fall a bit short this year in talent. The Chargers are favoured by 8 and we think they'll cover. Chargers -8 +2500.

(update: winner winner chicken dinner. Vikes 33-3).

Cowpokes at Minnesotta. One win last week and half the commentators on sports talk radio are calling the Cowpokes the best team in the playoffs. Are you kidding me? This is prime cowpoke swoon time. This is the time the cowpokes step up to the plate and take a mighty swing...and whiff. The Vikings bring the best runner in the game (Peterson) the NFC offensive rookie of the year (Percy Harvin) and some hack at QB named Favre. The cowpokes counter with one of the worst coaches in the league- Vanilla Phillips. We're not sure anyone is getting past the Saints next week, but we sure will love to watch the cowpokes implode again this January. It just gives us so much enjoyment.

Vikings -3 +1000.

DIVISIONAL PLAYOFF WEEKEND

4 Big games this weekend, and two on Saturday starting with..... some fun facts:

Cardinals at Saints. Fun fact: Kurt Warner has never...repeat NEVER lost in the Superdome. He's 8-0.

Fun Fact: The Saints limped into the Playoffs losing three in a row.

Fun Fact: No team ever losing three in a row to end the regular season has ever won a playoff game.

We keep under estimating these Cardinals, and this goes back to last year in the playoffs when the Cardinals were about two minutes away from being world champs.

We're gonna keep on doing that. The Saints are 7 point home favourites. These are not your Father's New Orleans Saints. These guys are the real deal, and New Orleans has been waiting for this for a long long time. The Packers lit up the Cardinals defense last week, and the Saints have a better offense than the Pack. It won't be pretty for Cardinal fans today. Saints -7 +1000.

Ravens at Colts. Fun fact: Peyton Manning is 0-3 coming off a bye week into the playoffs.

Fun fact: The Ravens have won six playoff road games since 2000, the most in the NFL.

The Ravens are built to win in January, with the best running game of all the teams left, and a punishing defense. For those of us who closely follow professional football, the Ravens/Steelers AFC Championship game last January was perhaps the most violent football game played in the last 30 years. These Ravens are tough, and they can hit, and while Peyton Manning may be the best who's ever played QB, we'd take Ed Reed and Ray Lewis over Peyton when building a team any time.

The Colt's record this year is deceiving- Since November here are some of the margins of victories in Colt games: 4 (over SF); 3(over Houston) 1 (over NE) ; 2 (over the Ravens on 11/22); 4 (over Jax).

The point is that despite being the number one seed in the AFC, the Colts were just squeaking by. No more. Ray Lewis and Ed Reed and Ray Rice put an end to the Colt's super bowl dreams. The Ravens win 21-17. Take the points and back up the Brinks truck: Ravens +7 2500.

IN MEMORY OF JUDGE TOM CARNEY

UPDATE: here is the AOC announcement on Judge Carney with his background information.

Update: I can't believe I wrote about Judge Carney and forgot to mention Gus. Gus was his bailiff, and not to get too sappy, but at least as it went in court, they completed each other. This must be a tough time for Gus. He was a loyal employee, and a one of a kind bailiff.

It's really hard to know how to begin to remember former Miami Circuit Judge Tom Carney.

I guess the first thing that comes to mind is he had a very low tolerance for BS. And he had a definite way of letting you know that.

He was a consummate jurist.

He was an old time Miami guy who had a ton of war stories.

Prior to becoming a Circuit Judge he was a very successful civil trial lawyer. If I recall correctly, either in personal injury as a plaintiff's lawyer or a defense attorney.

I believe he was one of the first judges to run the old back-up system where cases were tried 5 hours a day and two judges shared one courtroom with one judge working the morning shift and the second judge working the afternoon shift.

Tom Carney was from a different era. It's hard to imagine him walking into a Starbucks and ordering a Latte. It's easy to picture him at the bar in the clubhouse after a round of golf drinking a cold one. Or two.

As I wrote before: He was a real judge. He was a real man. I've missed him ever since he retired to the golf courses of North Carolina for his well deserved retirement.

I remember him fondly.

Farewell old friend.

BIG DUI HEARING THURSDAY

UPDATE: Report from the front lines of DUI Defense:

Richard Hersch writes:

My first post in four years.

The sound you heard emanating from the courthouse this afternoon was my motion crashing and burning. Ouch! Although we have substantial evidence that the inspection process for the breath machines is not scientifically reliable and subject to fraud (905 potential plug pulls -- and maybe ditched failed inspections during an 18 month period statewide), the judges held fast to a requirement that the infirmities relate directly to the breath reading in their case. My suggestion that all inspections be videotaped resulted in surprisingly strong pushback.

Whatever. Thanks for the support and kind words (mostly). Back to the drawing board for the next attack on these infernal machines. And yes, although less than 50% of the practice, there is gold in them there DUIs.

Sorry to hear about Tom Carney. There was a judge who let you know where you stood, whether you liked it or not.

Judge Tom Carney has passed away.

It is with very deep sadness that we report that former Circuit Court Judge Tom Carney has passed away. Judge Carney has been retired for several years and was enjoying his retirement golfing in North Carolina. More on this later. He was a Judge we were very fond of. A real man. A real judge.

THE COLONEL OF COUNTY COURT REPORTS....

At ease. I know that Rumpole owes you a DD22/416 (3rd DCA Report) but there are big doings Thursday in County Court that you should know about. So take a knee solider and listen up:

Not to many of you need additional reasons to drink adult beverages when in the Florida Keys, but thanks to DUI super-maven Richard Hersch, and attorney Hal Schumacher, the Intoxilyzer 8000 has been out of service ever since Hersch and company laid a whole lot of hurtin on the Monore County State Attorneys Office last summer. Hersch succeeded in showing that the machine's gerbils were not properly fed, thereby rending the wheel they ran on to power the machine NOT IN COMPLIANCE with the 600 or so federal and state regulations on the subject. There currently are NO breath test in the Keys while the Appellate courts sort the mess out.

Hersch then filed one of these motions in each of the county court divisions here in Dade.

The Dade SAO, in fulfillment of their mandate to seek justice, immediately moved to strike the motions and have them denied without a hearing.

There is a hearing Thursday, January 14, 2010, before Judge Bloom in Courtroom 6-8 at 1:00 PM on (believe it or not) whether there should be hearing on these motions? (And we wonder why people dislike lawyers so much. Only we set hearings on the issue of whether we should have a hearing on a motion).

Six of the other County Court judges who have similar motions pending in their division have been invited, although there is no truth to the rumor that the FACDL is catering the event with wine and cheese. The specter of Hersch's scimitar-like legal arguments, ably assisted by the lovely and equally talented Lasonya, will have to replace the glow of a crisp chardonnay with a slab of brie.

What's at stake, if you believe the MADD-Puppett SAOs is nothing less than the future of the free world.

What's really at stake is whether the people who stuff those hamsters in machines and call them accurate, scientific and in full compliance with the regulations of the State of Florida and the Federal Government can continue to get away with the "you'll just have to trust us that it works" argument. How long are the Judges of Florida going to let a two bit corporation from Kentucky tell them "tough" when it comes to issues like discovery on the source code for the machines?

Hersch is mad as hell and won't take it any longer. How about you? Show your support for the DUI defense lawyers by showing up in 6-8 Thursday at 1pm. The more people the prosecutors have to make their ridiculous arguments in front of, the more embarrassed they might be.

OK. That's all. Dismissed.

And remember...there's gold in them there misdemeanors.

HAITI HELP- Several people have confirmed this is a legitimate donation and way to immediately help in Haiti: Text the word: HAITI To Number: 90999 This will charge a $10 donation to assist the victims of Haiti.

Good work capt.

THE CAPTAIN REPORTS:

NORTH OF THE BORDER ..... (thanks to JAABLOG for the hard work; visit JAABLOG to read the entire letter)

"We have received more Brady notices in twelve weeks than we have in the past thirty years. "


In case you have not already read the letter that Broward Public Defender Howard Finkelstein sent to State Attorney Michael Satz yesterday, here are a few of the highlights:

"Recent events have caused me great concern about the Broward State
Attorney's Office's compliance with its discovery obligations. As you are
aware, the Public Defender's Office has filed several public records requests with your office. These requests were prompted by a partial Brady disclosure followed by a disclosure of close-out memoranda received from the State Attorney's Office. Those disclosures have led me to the inescapable conclusion that the State Attorney's Office, either through neglect or by design, has been non-compliant with its obligation to disclose favorable evidence to criminal defendants in Broward County."

"On September 6,2009, Assistant State Attorney Sheila Alu forwarded an email to an assistant public defender as a partial Brady Disclosure which identified several law enforcement officers under investigation by your office or some other law enforcement agency. The email stated the following:

"PD office: I am supplying you with a list of officers
where Brady needs to be supplied. I am forwarding this
list to you to expedite this information to your office. As
you all know, I am in this division alone. If you require
more than the list I am forwarding please let me know
and I will do my best to supply it to you."

"In response to this disclosure, the Public Defender's Office filed several
Motions for Disclosure of Exculpatory and Impeachment Information in open cases wherein these officers were listed as witnesses. My chief assistants pulled hundreds of closed cases listing these officers as witnesses and manually reviewed those files looking for Brady notices; however, none were found. We checked with the clerk to ascertain what entry the clerk's office uses to denote Brady disclosures and then checked each fie against Docketrac to ensure that we were not jumping to an unfair conclusion - that in fact the Broward State Attorney's Office systemically failed to comply with its Brady obligation. There were no notations in Docketrac."

"In response to one pretrial motion, an attorney received three "close-out
memos" which prompted us to fie public records requests for the names of all law enforcement officers investigated by the State Attorney's Office since 2006, as well as the ensuing close-out memoranda. Again, we checked for Brady notices with respect to these cases and none were found. After reviewing the close-out memoranda, we determined that the State Attorney's Office had information favorable to the defense exclusively within its possession which was not disclosed. The state's failure to disclose this information to defense counsel resulted in the resolution of numerous cases where my clients did not have essential information that should have been provided to them prior to the conclusion of their cases."

"The close-out memoranda included numerous examples of false reports and false statements by police officers. Fort Lauderdale Police Officer Daniel Zavadil and Lauderhil Police Officer John Lafontant both admitted to forging names and falsifying police reports, yet they were not prosecuted and no Brady notices were filed. Margate Police Officer Joseph Devito was determined to have filed a false police report after hitting a pole with his assigned police car. Four BSO deputiés and the Margate Chief of Police were involved in the investigation, yet no Brady notice was filed. Broward Sheriff Deputy James Bridgeman was referred by Broward County Sheriffs Office's Department of Internal Affairs for filing a false police report regarding his neighbor. He was also investigated by Internal Affairs for insurance fraud. The Special Prosecutions Unit did not prosecute, and no Brady notices were filed with respect to any of this critical information. The State Attorney's Office's decision not to prosecute these matters does not remove the favorable quality of the underlying evidence to the defense, although that apparently has been the modus operandi of the state's decision making process. BSO's Department of Internal Affairs also referred Deputy Robert Aspuru to the State Attorney's Office to investigate whether he stole $100 in confiscated funds. The Special Prosecutions Unit concluded, despite information from an independent witness, that there was no reasonable likelihood of conviction, and failed to file charges against him and failed to provide Brady notices. Hollywood Police Officer Matthew Goodnow was accused of misappropriating funds obtained in undercover drug operations; again Special Prosecutions did not prosecute, despite independent witnesses, and no Brady notices were filed. These are just a few examples of the information exclusively in the possession of the State Attorney's Office that was never turned over to defendants."

"Moreover, it appears that the Broward State Attorney's Office gives great
deference to law enforcement; it would clearly have filed charges if the same allegations were made against a civilian. "

"After hundreds of man hours expended by my chief assistants, I have been forced into reaching two conclusions. First, there was a systemic
nondisclosure of favorable evidence to the defense by the Broward State
Attorney's Office."

"My second conclusion is that there are two systems of justice at work in State Attorney's Office. Although the office espouses a filing standard of
"likelihood of conviction," that standard has two distinct meanings. For
everyday citizens, the "likelihood of conviction" filing standard means nothing more than probable cause. For police officers or other influential or wealthy citizens, "likelihood of conviction" means the State Attorney's Office cannot possibly lose the case, and any doubt about its success at prosecution benefits the potential defendant. The everyday citizen does not get the benefit of the doubt from the Broward State Attorney's Office, nor do they receive that which is statutorily, procedurally and constitutionally guaranteed - favorable information that may be used for impeachment purposes or that may exonerate a person accused of a crime."

"Finally, it is imperative that the Broward State Attorney's Office treat all
persons it considers for criminal prosecution equally. The two systems of
justice in Broward County must end."

Do we have a similar problem here in Miami-Dade County? Has the Miami-Dade Public Defender's Office ever performed such a thorough investigation? Has the criminal defense bar through FACDL or any other group done their homework?

None of these questions should automatically lead one to assume that KFR's office has not been compliant with Brady. But, the questions should be asked!

Our prayers go out to the citizens of Haiti.

Cap Out .....

CATASTROPHIC EARTHQUAKE HITS HAITI

More from the NY Times here:

The quake, with a magnitude estimated at 7.0, caused the collapse of the National Palace, leveled countless shantytown dwellings and brought more suffering to a nation that was already the hemisphere’s poorest and most disaster-prone.

The earthquake was the worst in the region in more than 200 years and left the country in a shambles. As night fell in Port-au-Prince, Haiti’s densely populated capital, fires burned near the shoreline downtown, but otherwise the city fell into darkness.

UPDATE: BBC REPORTS MANY BURIED UNDER RUBBLE.

(photo from the NY Times here. )

BREAKING NEWS:

THE BBC REPORTS THAT AN EARTHQUAKE OF "CATASTROPHIC STRENGTH" HAS HIT THE CAPITAL OF HAITI, CAUSING WIDESPREAD DAMAGE.

Raymond Joseph, Haiti's ambassador to the US, told CNN: "I think it is really a catastrophe of major proportions."

Title of post links to BBC report.

More news to follow.

BACK IN MIAMI

Back in Miami.

First Monday without Monday Night Football. Luckily my Madden NFL for Playstation arrived today.

Hank Adorno- remember him? He gets 2 million per seven clients. By contract.

Got a bar complaint. Won one count, lost one count from the referee - a North of the Border Judge who really stretched the law to give ol'Hank the benefit of the doubt about lying to Circuit Judge Peter Lopez:

Can the referee say with ‘precise explicit, lacking in confusion and of such weight that it produces a firm belief or conviction, without hesitation about the matter’ that respondent Adorno misled Judge Lopez and was less than forthright in the hearing? The answer is no.”

Gee: - How can we get six people like Tuter on our juries?

The DBR Article is here.

Broward Circuit Judge Tuter had this to say on the 2 mll fee:

But Tuter concluded, “No rational person could explain how seven individual plaintiffs ... could end up dividing $5 million in settlement proceeds and their attorneys $2 million.”

Rumpole notes- at least one rational person thought it was ok- Hank A.

First one of the year- See You in Court!!!

PHIL DAVIS GETS 20 YEARS

Monday update: We're going to leave the Davis post up today so those of you who contribute at work (or from the bench) can weigh in. 3-2 on football picks- 2-2 on games and 1-0 on the over.

PLAYOFF SUNDAY: Won on the Jets yesterday, should have picked the money line. Lost on the Cowpokes, but mitigated that with a win on the over.

Today: Ravens at Cheaters: Ravens, like the Jets, are built to win in January. Ravens -3 +500.

Pack at Cardinals. Line is all over the place here from Cardinals -2 t0 Cardinals +2. The money line is -110 for both (meaning you have to bet 110 to win 100) so lets call is even and put 500 brats on the Pack.

PHIL DAVIS : Requiem for a fallen man:

The sad and sordid saga of the life and legal career of former Dade Circuit Judge Phil Davis came to an inglorious end on Friday in a fourth floor courtroom in the Justice Building. A courtroom that was two floors above the second floor courtroom where Davis used to preside over twenty years ago.

On Friday Judge Butchko sentenced Phil Davis to 20 years in prison for stealing over $86,000 in County money ear marked for poor and underprivileged residents.

The title links to the Herald story.

We have no sympathy for Davis. He skated on a bribery and corruption case in federal court in which he was clearly guilty. His mish-mash defense then of cocaine abuse and entrapment was ridiculous considering his position, and only a lawyer as talented as ex-federal Judge Alcee Hastings could have pulled it off.

Having escaped the clutches of federal prison that ended up capturing co-conspirators former Judges Harvey Shenberg, Roy T. Gelber, Alfonso Sepe, David Goodhart, and others, Davis got a more than a one in a million chance.

And then he did it again.

And not only did Davis steal, he stole from the poor of this community and he committed his theft using what Judge Butchko labeled his "gifts" that he had "been blessed with."

All that being said, and with the firm belief Davis needs to go to prison if for no other reason than to punish him for acting like he was above the law for the last 20 years, the sentence is excessive.

The sentence is excessive because under our system we punish people based on the extent of the fraud and the monetary amount of the crime.

Disgraced NY Lawyer Marc Drier ran a Ponzi scheme, stole 700 MILLION dollars and received 20 years in prison.

The sentence is excessive because 20 years is anywhere from a third to a quarter of an individuals average life span and that is way too much to take away from someone who has not physically injured another.

The sentence is excessive because not only is it not proportionate with what federal courts in general have been giving across the country for this type of crime, but it is also excessive based on prior Miami Dade cases.

Within the last few years Circuit Judge John Schlessinger sentenced attorney and former prosecutor Knovack Jones to five years in prison for stealing over $300,000.00 in inheritance money from a client whom she befriended at her church. No coincidence that prior to becoming a Circuit Judge, Schlessinger spent many years in a distinguished career as a federal prosecutor.

We don't as a habit give the feds much credit, but this much is clear- they seem to realize the devastating impact prison has on an individual and most sentences come out between the 5 and 15 year range. It takes a lot to get into the 30-life category. Justifiably so.

The sentence is excessive because ten years is more than sufficient in this case. Davis would have spent behind bars ten birthdays, ten of his daughters birthdays, ten holiday seasons, and missed for a decade all of the small little things that make our lives memorable and enjoyable. He would have gotten out of prison in ten years as an old man with no conceivable way of making a decent living.

20 years amounts to a life sentence, and that is too much, even for the despicable crimes Davis committed in this case.

The sentence is excessive because the minimum sentence under the guidelines was 4 years and the maximum was 30. 10 years in prison followed by 10 years probation and 5000 community service hours to be performed at the rate of 500 hours per year would have accomplished the same goal.

Having witnesses Davis in court as a judge and watched as this reprobate sold his robes and sullied the reputation of our humble courthouse and all who worked here, we take no joy in defending him. Indeed, we are not defending him. We are just saying that in general the system for punishment and the terms of incarceration that Judges issue, especially in the state courts of Florida, are out of line, and are excessive to the point of being cruel and unusual.

Our legal system is supposed to issue punishment based on the crime in a fair, moderate, and humane way, devoid of vengeance based on emotion, and not cruel either in the manner or the length.

FOOTBALL: Our Saturday football playoff picks in the comments section today before noon.