HAPPY MEMORIAL DAY WEEKEND II

The view from the beach we're running on every morning. (OK. Part walk, part run. But it's still exercise.)

Here's a Memorial Day Weekend update because we're just in one of those moods.

Here's a nice Sun Sentinel article on Federal Judge James Cohn. "A true southern gentlemen" is how he is described. Judge Cohn will be sentencing Former Broward School Board Member

Beverly Gallagher on June 2. A week later he will be sentencing Scott Rothstein and on July 2 he will be sentencing former Miramar City Commissioner Fitzroy Salesman.

Quite a trifecta for the Judge.

WORLD WIDE ECOLOGICAL DISASTER.

The latest attempt to cap the gushing oil well in the Gulf Of Mexico has failed. It is reasonable to assume that the well will continue gushing until August, when a relief well will be finished.

The Gulf of Mexico is considered the "nursery" of the seas. Species as far flung as Blue Fin Tuna, which are harvested off the coast of Massachusetts, Dorado (Dolphin), several species of Turtles, Grouper and Snapper, not to mention several species of whales, all spawn in the Gulf. Currents from the Gulf reach the Atlantic and the Caribbean oceans within a short period of time, and other oceans thereafter. The world and our oceans are much more interconnected than we realize.

Even if the well was plugged today, there would be an ecological collapse of monumental proportions. When a species like Blue Fin Tuna which spends it life in the northern atlantic collapses, it effects the entire food chain below it. Some species will explode in volume, and others will collapse, all upsetting the delicate natural balance that has existed for thousands of years.

And all of these results are from the known problems of oil spills. Who knows the effects the chemical dispersants will cause when it is dumped on currents we barely know about 5000 feet below the surface? When it comes to the effects of humans on nature this much is true- there are things we know and can control; there are things we don't know and can't control; and most importantly- there are things about which we don't know we don't know. And that is the truly scary part because we will soon find out about that.

From a practical standpoint two ideas emerge from this disaster: we shouldn't be drilling a mile beneath the ocean when we clearly can't control accidents. And also this- the wide spread ecological disaster that will come to define our time will also unfortunately define the Obama Presidency. And that is a shame, because this man is so talented, and he has brought back talented and smart people to government. And none of that will matter because this oil spill will over shadow it all.

This is a whole lot worse than we've even begun to wrap our minds around. But let us leave you with this- if you are a cook, or an accountant, or a lawyer, or a taxi cab driver in Miami- just how to do think your life will change when the entire tourist industry in our town collapses? No one visits beaches and oceans ruined by oil and chemicals.

Sorry to be so morose, but this is what is on our mind.

HAPPY MEMORIAL DAY WEEKEND

Good morning. It's Memorial Day Weekend and here's the news you need to enjoy your weekend.

IT'S THE CONSTITUTION, STUPID.

Meet Judge Beatrice Butchko- former prosecutor; spent time in private practice; appointed Circuit Court Judge, and self described (drum roll please)

DEFENDER OF THE CONSTITUTION!

Under an April 25, 2010 (why did it take Rumpole so long to address this story? See below) Miami Herald Headline "Miami Dade Judge Blasts Flawed Public Defender System" Judge Butchko said this in response to a PD who announced she was not ready for trial because she was overloaded with cases:

'We're not in some Third-World nation where the Constitution means nothing. In this division, the Constitution means something,'' Miami-Dade Circuit Judge Betty Butchko told lawyers Friday.

Rumpole wonders: What does Judge Butchko know about other divisions that we don't? Who does she hang out with, robed reader wise? Who is she eating lunch with? Will she respond and list just which divisions she is aware of in which the Constitution means less than something? Stay tuned.

OBAMA'S CLEANUP KERFUFFLE:

Jefferson Parish Councilman Chris Roberts accuses BP of trucking in 300-400 extra workers for Friday's photo op showing the President walking the beaches with BP workers in the background earnestly cleaning what looked to us to be pristine beaches.

Understandably the WH was nervous about letting the press photograph the President on oil fouled beaches, lest the images be used in 2010 and 2010 campaigns. But what about the allegation carried by CNN here that the workers were trucked in for a staged photo op?

REMEMBRANCES OF JUDGE EDWARD DAVIS:

Everyone's favorite federal blogger has two wonderful emails from Judges Moreno and Altonaga on Judge Ned Davis. It's must reading.

RUMPOLE'S TOP LIST:

Vienna tops the list of Best Cities in the World based on Mercer's quality of life survey here.

And Usher's OMG rests atop the Billboard Hot 100.

Rumpole's Daily Reading List:

As we spend this Memorial Day Weekend with the rich and famous in Montauk, NY, we post our daily reading list for your perusal:

When you wake up in the morning, if you're not immediately heading over to Politico to read Mike Allen's Playbook and The Huddle, then you're already behind.

Next, for us, we read the on line editions of Le Monde, The NY Times, The London Times, The Financial Times (Londo Edition) and the Washington Post. It's only then that we reluctantly turn our attention to the Miami Herald and the mundane news of who shot who, and whether Miami Beach will let revelers be served alcoholic drinks on the beach. Thus, we some times miss local stories like the one above. Most of the time alert readers will give us a tip.

Enjoy your holiday weekend, and get ready for the crush on Tuesday. If a few alert readers can send us updates and pictures of the lines outside the REGJB we will be greatly appreciative and will have a shot of Patron in your honour.

CORRECTIONS KERFUFFLE

No post in recent memory engendered the high level of discussion than our post last weekend detailing the experience of our hapless private attorney friend who needed five full days and five putative attempts before he was allowed to see his client at the Dade County Jail.

(<---------check out the new poll)

In response to some high level inquires, the attorney in question has emailed me that he was never offered the option of seeing his client through glass in a booth. That appears to be the new policy of the Dade County Jail (Motto: "proudly keeping attorneys from their clients since well before you were born.")

In all seriousness, there is another side to this issue that needs to be examined: the new policy at the DCJ was created in response to the absolutely intolerable circumstances of attorneys visiting clients without being asked to in an attempt to "steal" clients away from legitimate attorneys of record.

While we applaud the concern, there are serious shortcomings with the new policy. The most glaring problem is that clients often legitimately wish to change attorneys or seek a second opinion and are unable to do so under the new policy.

Perhaps a better solution is for the jail to keep a record of which attorneys visit clients. This record can be made available to the attorneys of record, who can then report attorneys who solicit clients or who otherwise see clients without being requested to do so.

However, if the jail and the court system wants to turn their attention to these types of problems then perhaps the SAO can once and for all GET OFF THEIR BUTTS AND INVESTIGATE BONDSMEN WHO REFER CASES TO ATTORNEYS. This is not that hard to do. We have made several complaints over the years. Bondsmen were literally kidnapping clients by bonding them out, taking them to their office, having them call their families for money for the bond, and then forcing them to hire particular attorneys under the threat of surrendering them back to jail if they didn't. A start would be to look at several attorneys who we all know and despise. We are 100% certain that any decent detective would see that certain attorneys in particular have 95% of their clients who were bonded out by a particular bonding agency. It then would be a quick step to interview some former clients who would all tell the same remarkable story that their bondsman threatened to surrender them back to the jail if they didn't hire one particular attorney.

Anyway, Attorney Rick Freedman is on some FACDL committee that deals with the jail. They do two things at the FACDL exceedingly well: They form committees and they hound you for dues.

Rick wants everyone to let him know what they think the policy at the DCJ should be:

(choose 1, 2, or 3, then when you see Rick in the building just shout a number at him. Alternatively you can call Rick at home and just shout a number at him when he answers; then hang up. Or you can officially vote in our poll at the side of the blog post. Your choice. But sometimes shouting can be fun. )

1. Only the attorney of record can see the inmate face to face; (all others would be "under glass'').

2. If the inmate is represented by the PD, any attorney with a bar card can see the inmate face to face.

3. Anyone with a bar card can see the inmate; Miami Dade DOC should not have any rules restricting access.

Rumpole says: The DCJ has been a cesspool of corruption for decades now vis a vis the referring of clients and the stealing of clients. How many of you have been told that a corrections officer subtly slipped your client the card of an attorney he should hire? It is our great suspicion that the officers who refer inmates to attorneys are doing so for motive$ other than altrui$m.

TRY IT AND LOSE IT

For those of you who have never been in a courtroom as a trial lawyer, (and yes that includes most of you robed readers) have you ever wondered what really bothers us about Broward?

No it's not the horrible parking, or the sanctimonious Judges who in the past would blatantly discriminate against attorneys from Dade and their clients.

No, the real problem with Broward was the SAO and their "I'd rather try it and lose it" then make the correct call and dismiss the case philosophy.

You must read the Broward JJA blog's post about just this sort of prosecutorial abuse.

The jury found the Defendant not guilty of the main charge of attempted murder "in about 30 seconds.". According to the post, the charge was increased from Agg assault to attempted murder after a prosecutor took a one minute statement from the alleged victim a few years after the case was filed. The increase in charges occurred after the defendant rejected the initial plea offer. This fact pattern begins to mimic the "seismic change in prosecution" threat made to David O Markus in his defense of a doctor in federal court that resulted in a not guilty and a bar complaint against the prosecution by the Judge after, among other things, the prosecution added over one hundred charges after the defense filed a motion to suppress.

Trying a defendant that a prosecutor knows is innocent, or even bringing to trial a person that the prosecutor knows there is not sufficient evidence to justify a conviction is an offense so odious to the American system of justice that prosecutors who engage in such abuse should be referred to the bar for disbarment. The supervisors who approve of such conduct should be disbarred as well.

The other disturbing fact arising from this story is the prosecution's steadfast refusal to waiver from a three year minimum mandatory state prison offer although the defendant had no priors and never fired his weapon. Compare and contrast that to the waiver immediately given to the wife of the the Fort Lauderdale's Chief of Police after she fired a gun at him. In this case, there was never any allegation that the defendant drew his weapon from his holster (and the defendant had a valid CCW permit allowing him to carry his weapon.)

This whole episode stinks, and the worst stink is that nothing will be done about it in the Broward State Attorney's office.

At a minimum the trial prosecutor and his/her supervisor should be referred to the Florida Bar.

JUDGE EDWARD DAVIS HAS PASSED AWAY.

UPDATE: Here is the Herald obit:

Edward Davis, Former Chief Judge of the Southern District of Florida, and one of the very best Judges and human beings we have ever practiced before has passed away.

David O Markus who clerked for Judge Davis has more words of remembrance on his blog, and they are very fitting. So we'll leave the eulogies to Mr. Markus who hit it right on the head when he wrote that Judge Davis was a Man's Man. He was also a Judge's Judge. Kind. Compassionate. Wise. A great sense of humor.

We won't see his like in these parts again.

Rest in Peace Judge.

UP NEXT: The Corrections Kerfuffle continued.

AND COMING SOON: IN DEFENSE OF RAND PAUL.

FUN AT DCJ

We received this email, which bears repeating in its entirety:

"Rumpole- perhaps your readers would enjoy my experience at the Dade County Jail this week.

I took over a felony case from another lawyer and attempted to see my client at the Dade County Jail. Here is my story.

DAY ONE: MONDAY: I go to the jail and am cheerfully admitted through the legendary front gate. I fill out the paperwork, clear the screener (which is a new addition- for years no one bothered to check why the security machine was beeping. Just don't bring a cell phone or a lighter into the jail. Small arms and ammo were apparently completely acceptable.)

They take my paperwork and go to the computer and return and tell me I can't see my client because I am not the attorney of record. I inform them that the client just hired me. "No way Jose." If the computer doesn't say I'm his lawyer, I can't get in. Now it occurs to me at this point that in this case the client's family hired me. But what if they wanted me to see their son before hiring me? How would the jail handle that? Anyway, I am told to return with my notice of appearance.

DAY TWO: TUESDAY: I return with my notice of appearance. I enter the front gate, hand them my paper work and am promptly told that I cannot see my client. The computer does not have me listed as my client's attorney. "But I have my NOA" I say. "They told me they needed that."

Nope. If the computer doesn't have me listed as the attorney, I cannot get in.

A word about this computer. When they went to check the computer, the corrections officer could not get the mouse to work. She kept swiping it but the cursor on the screen didn't move. She then looked behind the screen to check the wire. I tried to lean down and talk through that little 16 inch opening in the security glass and tell her that the mouse was wired into the computer but not the screen. She ignored me. Then she started yelling to her compatriot that she couldn't check the computer because the mouse wasn't hooked up to the screen. "The computer, the computer !" I tried to yell. "Check the mouse wires to the computer." Another corrections officer arrived. Then another. They picked up the screen. They looked behind it. All the time tugging on the wire to the mouse that led down through a hole in the table and to the computer. Finally, and this is true- they put the screen down- one corrections officer held it- and another smacked it with a radio. Lo and behold! The mouse started working. The computer was checked and it dutifully spit out "NO" in my request to see my client.

DAY THREE :WEDNESDAY: Now things are going to get fun. I return with a copy of a certified copy of my motion for substitution of counsel. I fill out my paperwork. I present it to the corrections officer. "What's this?" "It's an order that says I am the new lawyer on the case. I bring it with me on the extraordinarily slim possibility your computer does not say that I am the lawyer on the case. " "Hold on." I wait several minutes. "You can't come in." "Why?" "The computer says you're not the lawyer on the case." "Aha. That's why I brought you an order. See, it's stamped just about ten days ago, saying the client switched lawyers. " "Hold on." I wait several more minutes. "You can't come in. " "Why." "My supervisor says this doesn't have red ink on it. It's not an official copy." They had me there. I made the fatal mistake of copying my certified copy, and not bringing the original one. I was beaten yet again. I left.

DAY FOUR: THURSDAY. If I was the subject of a reality TV show and had a TV crew following me, I would have the material for a top rated show. Today's attempt to see my client was truly frightening. I arrived at the legendary front gate fully armed for battle. I walk in. I clear the screener. I have my original certified copy of the motion for substitution of counsel. I cannot lose. I fill out my paper work, I smugly slide my original certified copy through the 16 inch slot, and while I was not looking Rod Serling was off to the side slyly informing his viewers to behold the over worked criminal defense attorney vainly trying for four days to see his client. Only today, unbeknownst to him, he was about to enter the twilight zone.

"You can't see the defendant." "Why not?" "The computer says you're not his lawyer." "Aha. But I have an order saying I am the new lawyer. And it has the red ink stamp on it as well."

"Huh?" "The order. You have it in your hand. It says I am the new lawyer." The corrections officer spends several minutes reading it. I am now quoting exactly the conversation that ensued, as I began to take notes. My recitation will also closely approximate the phonetic sounds of the words I heard:

"It don't say dat." "Yes it does." "Where?" "Can I see it for a moment." "No. hang on." I wait as a second corrections officer arrives. 2nd Officer: "What jew want?" Me: "Huh?" 2nd Corrections Officer: "You ain't seeing no one who you no be the lawyer for." Me: "Hang on a sec- that's a lot of negatives. I need to get this down." I take a deep breath. "Officers. I have an order saying that I am the new lawyer on this case. I know the computer doesn't think I am the new lawyer, but I assure you I am." First Corrections Officer: "Where it say dat on dis?" Me: "Right there. XXX shall be substituted as the attorney for YYY." First Corrections Office to Second: "See. He say dis say he da new lawyer. But this don't no say dat. Dis say substitute. Nothing about being a new lawyer." " Second Corrections Officer: "So he like working with the first one right?"

Me: "I'm right here. I can answer that question." First Corrections Officer: "Hold on."

Both corrections Officers disappear and after ten minutes or so, a third one arrives.

She authoritatively holds up the Order: "If you be working with some lawyer we need a letter from that lawyer saying you can see the client."

Me. "But I'm not working with the lawyer. I'm the new lawyer. I don't think any of you understand what "substitutes" means.

First Corrections Officer to Second and Third: "There he go again thinking he smarter than us cause he a lawyer."

Me: Bending down to talk through the 16 inch slot. "I never said that! All I'm saying is that if you don't understand the order, try reading the next line where it says that lawyer YYY shall be relieved from any further obligations in the case. "

Second Corrections Officer: "Why don't you try getting an order that say you da new lawyer. It ain't that hard."

Me. "I'm beginning to see your point. Can I speak with the shift commander? "

First Corrections Officer to second and third under her breath "I knew that was coming." Then to me: "He on break. You need to come back."

Post script :I went back on Thursday afternoon, spoke to the shift commander, was granted access to the jail, only to be told the floor was on lock down.

On Friday afternoon I went back to the jail and was promptly admitted and saw my client. I am by nature curious, so I asked the woman at the front desk why she didn't check the computer to see if I was the lawyer. "Too much trouble" she said. "The mouse never works and the information is always out of date."

Please Rumpole- please print this so the next time some sneering and condescending Judge who has never been in private practice wants to know why we didn't promptly see our client in jail, they will have some understanding of the troubles we go though. It's not just like we walk in, are given a cup of coffee and seated in a comfortable chair whilst out client is brought to us.

Thanks.

Rumpole says: Wow!

3rd DCA ROUNDUP-WOOPS HE DID IT AGAIN EDITION

You know him, you love him, you can't live without another reversal of a trial he presided over. We are speaking of course of the embattled Judge Peter Adrien and yet another reversal, this time in the trial Judge Adrien presided over in Foster v. State.

Foster was charged with first degree murder, attempted second degree murder, and a host of other accompanying charges. His attorney properly filed a notice of alibi with the names of witnesses, a year and a half prior to the start of the trial. The normal parade of Assistant State Attorneys came and went, and lo and behold once the trial began, the current ASA decided to read his/her file and was shocked to find a notice of alibi with the names and addresses of witnesses. This being the courtroom that it was, the best defense was a good offense and the prosecutor demanded the defense attorney produce the witnesses for trial the next day. The defense attorney couldn't do it, and Judge Adrien struck the notice, and prevented the defense from calling alibi witnesses, including at least one witness who was prominently mentioned in the police reports. What's the big deal about actually getting to the truth of a case when faced with the ability to use procedural rules to deprive the defendant of a fair trial? "We who labor here seek only truth- unless we can figure out a way to convict you without getting to the truth."

Well thank goodness for Attorney Rafael Rodriguez for the defense on appeal, as well as 3rd DCA Judges Gersten, Shepherd, and Lagoa, who held that exclusion of the witnesses was an improper sanction.

Here's the rule in the unlikely event you ever find yourself in a similar situation with the same players: The Florida Supreme Court has established a two-step analysis to determine whether a trial court properly excluded defense witnesses pursuant to Rule 3.200: (1) whether there was in fact a violation of the rule, and (2) if so, whether good cause exists to waive the noncompliance. Small v. State, 630 So. 2d 1087, 1089 (Fla. 1994).

Reversed for a new trial.

We'd really like to leave it at that except for a disturbing decision that has repercussions for those of us who kinda like the 4th amendment.

In State v. Carreno Judge Ward catches a reversal in a case where she granted a motion to suppress after another Judge issued a search warrant for a suspected Marijuana grow house.

A Judge that reviews a search warrant issued by another judge must pretty well deny the motion unless Martians land at the courthouse and tell her otherwise:

It was the reviewing court that failed to apply the proper standard, one of “great deference,” to the original judge’s determination. See Spinelli v. United States, 393 U.S. 410, 419 (1969).

For the Judge that issues the warrant the standard is rather low: To reiterate, “it is the ‘probability, and not a prima facie showing, of criminal activity [that] is the standard of probable cause.’” Doorbal v. State, 837 So. 2d 940, 952-53 (Fla. 2003)

For the Judge that reviews the warrant, the standard is shockingly low:

However, in reviewing a prior determination of probable cause and the issuance of the search warrant, the reviewing court must “accord[] ‘great deference’ to a magistrate’s determination,” even in a marginal or doubtful case. United States v. Leon, 468 U.S. 897, 914 (1984) (citing Spinelli, 393 U.S. at 419); see United States v. Lockett, 674 F.2d 843, 845 (11th Cir. 1982). In fact, “once a Magistrate has found probable cause and has issued a warrant, his judgment is conclusive unless arbitrarily exercised . . . .” United States v. Giacalone, 541 F.2d5508, 513 (6th Cir. 1976). Therefore, “the trial court should not disturb an issuing magistrate’s determination absent a clear determination that the magistrate abused his discretion in relying on the information in the affidavit supporting the warrant application to find probable cause.” Woldridge, 958 So. 2d at 458 (citing State v. Price, 564 So. 2d 1239, 1241 (Fla. 5th DCA 1990)). To that end, the trial court, when reviewing the issuance of a warrant based on a probable cause affidavit, “does not conduct a de novo determination of whether there was probable cause to issue the warrant. Instead, the trial court determines only whether substantial evidence supported the magistrate’s determination that probable cause existed.” Woldridge, 958 So. 2d at 458 (citing Bonilla v. State, 579 So. 2d 802, 805 (Fla. 5th DCA 1991)).

Rumpole says: Ouch.

THOMAS'S DISSENT IN GRAHAM

Here is the great problem for us in Graham- Kennedy writes an awful opinion that reaches a conclusion we agree with. Thomas writes an extraordinarily effective dissent that dissects the majority opinion. We don't think life in prison with parole is an appropriate sentence for a juvenile- but as Thomas argues- it should remain a matter for the legislature.

For Thomas the issue of what the 8th Amendment prohibits is simple: What does the Constitution say about sentencing and what were the sentencing practices during the time of the Framers?

Although the text of the Constitution is silent regarding the permissibility of this sentencing practice, and al- though it would not have offended the standards that prevailed at the founding, the Court insists that the stan- dards of American society have evolved such that the Constitution now requires its prohibition. The news of this evolution will, I think, come as a surprise to the American people.

Vox Populi says Justice Thomas- the voice of the people rule:

I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judg- ments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III gives us that authority.

I respectfully dissent.

And Justice Thomas carries the banner for original intent: the 8th amendment means only what the framers said it meant back then- nothing more: It is by now well established that the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous “‘methods of punishment,’”

Thomas notes, correctly we admit, that the current supreme court analysis of 8th amendment sentencing issues regarding sentences that are "grossly disproportionate to the crime" is a creation of the court.

First, the Clause does not expressly refer to proportionality or invoke any synonym for that term, even though the Framers were familiar with the concept, as evidenced by several found- ing-era state constitutions that required (albeit without defining) proportional punishments. In addition, the penal statute adopted by the First

Congress demonstrates that proportionality in sentencing was not considered a constitutional command. (noting that the statute prescribed capital punishment for offenses ranging from “ ‘run[ning] away with . . . goods or merchandise to the value of fifty dollars,’ ” to “murder on the high seas”

Rumpole says (and we know the answer, but still we proffer the question) What makes the Framers point of view infallible? And if they were infallible, is Thomas 3/5's a man?

Of course they were not infallible. Original intent proponents argue that there has to be some basis- some baseline of interpreting the Constitution outside of considering the document to be "living and breathing" which is just code words for the document being whatever 5 judges say it is. And while we agree that judges should not be legislators, Justice Stevens is correct that Justice Thomas would apparently- under his philosophy, uphold capital punishment for thefts of goods valued above fifty dollars.

The real problem for Kennedy's majority opinion is that Thomas's dissent is right on the point that philosophically, the basis of this opinion opens the door for the court to create more rules willy nilly, without any basis in the court's Article III authority:

The Court has nonetheless adopted categorical rules that shield entire classes of offenses and offenders from the death penalty on the theory that “evolving standards of decency” require this result. The Court has offered assurances that these standards can be reliably measured by “‘objective indicia’” of “national consensus,” such as state and federal legislation, jury behavior, and (surprisingly, given that we are talking about “national” consensus) international opinion.

When we mentioned in the prior post the gobbledygook of Kennedy's majority opinion- it was the great lengths that Justice Kennedy twists and turns through the painful analysis of statistics, to reach the very shaky conclusion that the sentence in question violates national moral standards, and thus the 8th amendment. The decision in Graham, is for us, the correct outcome. But at what cost to the theory of judicial review? That is the gist of Thomas's dissent, and we give credit where credit is due. Because if you read Kennedy's opinion, you should reach the conclusion that he could apply that tortured decision making process to just about any result he and four other members of the court want to achieve.

Yet even assuming that is true, the Framers did not provide for the constitutionality of a particular type of punishment to turn on a “snapshot of American public opinion” taken at the moment a case is decided. By holding otherwise, the Court pretermits in all but one direction the evolution of the standards it describes, thus “calling a constitutional halt to what may well be a pendulum swing in social attitudes.”

Thomas's main problem with the decision- and in this he is 100% correct- is that Kennedy holds that the law is what the court says the law is- despite what the "community consensus" is.

But the Court is not content to rely on snapshots of community consensus in any event. (“Community consensus, while ‘entitled to great weight,’ is not itself determinative” (quoting Kennedy, supra, at __ (slip op., at 24)). Instead, it reserves the right to reject the evidence of consensus it finds whenever its own “independent judgment” points in a different direction. The Court thus openly claims the power not only to approve or disapprove of democratic choices in penal policy based on evidence of how society’s standards have evolved, but also on the basis of the Court’s “independent” perception of how those standards should evolve, which depends on what the Court concedes is “‘“necessarily . . . a moral judgment”’” regarding the propriety of a given punishment in today’s society.

Here is Thomas's main point: The categorical proportionality review the Court employs in capital cases thus lacks a principled foundation.

Thomas then proceeds to analyze the sentencing of juveniles and argues that the rarity of the imposition of life sentences for juveniles who have not committed murder shows that the imposition of the sentence is properly being reserved for the most heinous of cases. He recounts a horrific crime where a 17 year old in Oklahoma rapes and slices the throat of his 14 year old victim, only to have her survive. Thomas then notes that this is the first time a jury in Oklahoma has ever sentenced a juvenile to life in prison for a non murder case:

I cannot agree with the Court that Oklahoma citizens should be constitutionally disabled from using this sentencing practice merely because they have not done so more frequently. If anything, the rarity of this penalty’s use underscores just how judicious sentencing judges and juries across the country have been in invoking it.

In the end, however, objective factors such as legislation and the frequency of a penalty’s use are merely ornaments in the Court’s analysis, window dressing that accompanies its judicial fiat. By the Court’s own decree, “[c]ommunity consensus . . . is not itself determinative.” Only the independent moral judgment of this Court is sufficient to decide the question.

For Thomas, the emperor has no clothes and he says as much:

In the end, the Court does not even believe its pronouncements about the juvenile mind. If it did, the categorical rule it announces today would be most peculiar because it leaves intact state and federal laws that permit life-without-parole sentences for juveniles who commit homicides. See ante, at 23. The Court thus acknowledges that there is nothing inherent in the psyche of a person less than 18 that prevents him from acquiring the moral agency necessary to warrant a life- without-parole sentence. Instead, the Court rejects over- whelming legislative consensus only on the question of which acts are sufficient to demonstrate that moral agency. The Court is quite willing to accept that a 17-year-old who pulls the trigger on a firearm can demonstrate sufficient depravity and irredeemability to be denied reentry into society, but insists that a 17-year-old who rapes an 8- year-old and leaves her for dead does not.

Finally- Thomas ends with a sharp retort to Justice Stevens-

I agree with JUSTICE STEVENS that “[w]e learn, some- times, from our mistakes.” Ante, at 1 (concurring opinion). Perhaps one day the Court will learn from this one.

I respectfully dissent.

Between the two opinions there is no contest as to which one is logically consistent and conforms to the principles of judicial review- Thomas carries the day.

GRAHAM V. FLORIDA

Here is the decision in Graham v. Florida, holding that it violates the 8th amendment's prohibition against cruel and inhumane punishment to sentence a juvenile to life in prison for a crime other than murder.

Oh my is this opinion a field day for the critics of strict construction and original intent. Justice Kennedy wrote the majority opinion and he opens with a liberal blast of "evolving standards of decency." (How that phrase must have made Scalia's skin crawl!)

To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to “‘the evolving standards of decency that mark the progress of a maturing society.’” Estelle v. Gamble, 429 U. S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’ ”Kennedy v. Louisiana, 554 U. S. ___, ___ (2008) (slip op., at 8) (quoting Furman v. Georgia, 408 U. S. 238, 382 (1972) (Burger, C. J., dissenting)).

Next, after an enormous amount of legal gobbledygook,

( See, METROPOLITAN LIFE INS. v. GLENN, 554 U.S. 105 (2008) )

Justice Kenndy decides juveniles are less responsible for their actions than adults:

As compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are “not as well formed.” Id., at 569–570. These salient characteris- tics mean that “[i]t is difficult even for expert psycholo- gists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id., at 573. Accordingly, “juvenile offenders cannot with reliability be classified among the worst of- fenders.” Id., at 569. A juvenile is not absolved of respon- sibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion).

Next Justice Kennedy makes this startling conclusion: As for the punishment, life without parole is “the second most severe penalty permitted by law.” Harmelin, 501 U. S., at 1001 (opinion of KENNEDY, J.). (Rumpole says: Duh!)

A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity. Incapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportion- ate sentences be a nullity.

And finally, just because he can, and because he couldn't get Scalia's vote anyway, Justice Kennedy threw in a paragraph about the sentencing practices of other countries:

There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over...The Court has looked beyond our Nation’s borders for support for its independent conclusion that a particular punishment is cruel and unusual... Thus, as petitioner contends and respondent does not contest, the United States is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders.

Justice Stevens in his concurrence was biting in his criticism of Justice Thomas's dissent:

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, see post, at 4, 10, n. 3, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

NEXT : Thomas: The great and silent dissenter.

A WIN FOR FLORIDA

The Supreme Court voted today 5-4 that it is unconstitutional to sentence juveniles to life in prison for crimes in which they have not committed murder.

The NY Times Article is here.

We haven't had time to read the opinion in full, so our normal witty insightful comments will be posted later today/tonight.

Suffice to say that Justice Thomas dissented along with Justice Sam "Hang em all" Alito and that great friend to criminal defense (according to Fed Blogger David Markus) Justice Scalia. While we haven't read the entire dissent, according to Thomas, the original intent of the framers was the keelhauling and stoning were appropriate sentences, so how in the world could a cushy prison cell be cruel and unusual?

More later.

SMILE. IT'S MONDAY

In case you had any questions about the matter, here's proof, in his own words, that Pat Buchanan is an anti-semtic nut: From his syndicated column:

"If Kagan is confirmed, Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats."

GLICK REDUX

Who was that Judge in bond hearing court last week? Well several longtime readers have written in to alert us that it was retired Judge Lenny Glick presiding over bond hearings.

Pro Se criticisms:

Here's what NY State Supreme Court Justice Carol Bergman told a pro se client who was about to defend himself in a first degree murder case in NYC: (From the NY Times )

“You don’t know how to ask a question,” Justice Berkman told him in State Supreme Court. “You don’t know how to offer things into evidence. You keep making stupid speeches. You keep saying you are good at this. You are not. I do not say this to insult you.”

We known more than a few lawyers who could have been the recipient of that speech.

And we leave you on this Monday with this:

Your worst enemy cannot harm you as much as your own unguarded thoughts. Develop the mind of equilibrium. You will always be getting praise and blame, but do not let either affect the poise of the mind: follow the calmness, the absence of pride. - Sutta Nipata

THE NEWS YOU NEED (including Fatty Cue info)

While heading into the Weekend.....

It's Friday May 14, 2010. It's the 134th day of the year, with 231 fun filled and sun splashed days remaining.

In Broward it turns out that soon to be former Judge Ana Gardiner lavashed over $600,000.00 in legal fees on her new firm, not the $300,000.00 we reported earlier in the week. Just a coincidence we're sure. Along the way she flirted with the lawyers during the trial and basically had a grand old time. Here's a neat riddle- what happened to the Plaintiff in that civil trial that didn't happen to the judge (that we know of) but that the Judge wanted it to happen?

**Answer below.

We hear that newly minted Circuit Judge Joe Fernandez will take over Judge Soto's calendar now that Soto is chief Judge for criminal courts. Soto can now turn her attention to more "Blake like matters" like.....well, something will occur to us.

Celtics knocked the Cavs out of the playoffs last night.

There's still an oil spill in the Gulf that's heading this way.

And US Senators were shocked...just shocked to learn yesterday that Supreme Court Nominee Kagan clerked for former Supreme Court Justice Thurgood Marshall.

As if working for a giant in the history of this country and the history of Supreme Court Jurisprudence automatically prevents Kagan from becoming a Judge because Marshall is considered to have been "an activist" Judge.

We guess if Marshall wasn't such an "activist" as a lawyer and a Judge then maybe, in the view of these Senators, precedent would have been respected, Plessy v. Ferguson would still be good law, and little children of different colours would be going to separate (but equal) schools.

And finally, if the worst thing these moronic right wing nuts (and senators) can come up with is that Kagan shouldn't be confirmed because she has never been a judge and it's a dangerous thing to put someone without judicial experience on the Supreme Court, then lets all agree to go back and vacate every decision Justice Rehnquist participated in because he was the last Justice confirmed without prior judicial experience. (Update and erratum- A loyal reader informs us that Justice Lewis Powell was the last Justice confirmed without prior judicial experience. Wikipedia reports that Nixon nominated Powell and Rehnquist on the same day. Certainly Powell was the most reluctant nominee in recent history, turning down Nixon's request to serve in 1969. Our point about Rehnquist was that as a judicial hero of the right, the right has no right to throw stones at Kagan on her lack of experience. Right?)

We started out writing this in such a good mood. Not sure what happened.

WHAT IS FATTY CUE?

Last week as we had a 24 hour layover in NYC, a fetching acquaintance enticed us to spend an evening at an unlikely named place called "Fatty Cue". Here is the NY Times review yesterday- but we leave you with a recipe for a drink appropriately entitled a "Recession Special":

a shot of rail bourbon, a shot of spicy pickle juice and a tallboy of Pabst. The drink is best consumed in that order, pausing only to thrill to the way that pickle juice refracts the flavors of first the whiskey and then the beer.

Rumpole sort of remembers that a few of those (especially the bourbon shots) turns any acquaintance into a "fetching" one; any evening into a "fun" one; any food into "great food"; it's just hard to remember most of the specifics.

**Answer: She got screwed.