Wednesday, June 30, 2010


A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

There are two things that apparently drive our loyal readers to write comments on this blog:
1) Talitha Leacock's use of the FACDL Listserv; and 2) The Second Amendment.

The Miami Chapter of the FACDL met today and our sources tell us that the board decided: 1) Dues are really important; and 2) Orlando is a neat place to hold meetings.

On to the Second Amendment.

Almost all of the first ten amendments are written with an identifiable subject that is then modified.
"Congress" shall make no law respecting the establishment of religion... (1st)
"Soliders" shall not be quartered in a home in time of peace without consent of the owner....(3rd)
"People" shall be secure in their homes....(4th).

And a well regulated "Militia" is needed for the security of a free state. (2nd).
In 1776 the Pentagon didn't exist. The Colonies didn't have standing armies. What they had were citizen-soldiers.

What did a Militia need? Armed citizens. Thus, and this is just so clear, the Second Amendment guarantees that citizens will be armed...for what? FOR THE MILITIA.

There were no drive by shootings in 1776. Or drug dealers. Or Ghettos. Or gang violence. So why in the world do we ask Judges to try and divine what a bunch of middle aged-slave owning white men thought about current problems that are ripping our society apart?

The Center For Disease Control estimated that in 2000 in the US there were 53,277 deliberate and 23,237 accidental non-lethal firearm injuries. That's 77 THOUSAND Citizens injured every year. in 2003 there were over 30 THOUSAND gun related deaths.

In 2002 3,012 children or teenagers were killed by firearms. That's 8 children a day; 1 every three hours; more than 50 each week and more than 200 every month. The rate of firearm deaths among kids under age 15 is almost 12 times higher in the United States than in 25 other industrialized countries combined. (Centers for Disease Control and Prevention) American kids are 16 times more likely to be murdered with a gun, 11 times more likely to commit suicide with a gun, and nine times more likely to die from a firearm accident than children in 25 other industrialized countries combined. (Centers for Disease Control)

The overall firearm-related death rate among U.S. children younger than 15 years of age is nearly 12 times higher than among children in 25 other industrialized countries combined. Source: Centers for Disease Control and Prevention. Morbidity and Mortality Weekly Report, 1997;46:101-105

Why in world do we care what Hamilton or Jefferson thought about the right to bear arms? Guns in their world and guns in our world have absolutely no correlation.

Based on interpreting the plain language of the Constitution, or based on an overwhelming social issue that the political institutions of our society cannot remedy (See, Brown v. Board of Education) the Supreme Court's recent decision on the Second Amendment ranks right up there with Plessy v. Ferguson. Both decisions were politically based and driven by ideology.

We're off to the Vineyard tomorrow. We will have a 4th Of July post up before the weekend.

If this girl had a gun, she probably would not have been attacked.

Tuesday, June 29, 2010



For seventy days Haley Barbour, the Governor of Mississippi and former head of the Republican National Committee has loudly complained that fears of oil reaching Mississippi's coastline was created by the liberal media. Barbour, a former lobbyist for Oil Companies, and whose run for Governor was financed in part by large oil companies, has also been an outspoken critic of the government's ban on new offshore drilling, and has spoken against the use of Obama's "big government" against "private oil companies."

On Monday June 28, 2010, oil reached the beaches of several Mississippi beaches.

Governor Barbour immediately asked for more federal help and pledged to make sure BP paid for the clean-up.

For 70 days everyone but the Governor of Mississippi knew that the prevailing Gulf currents would take oil to the beaches of Mississippi. In response, Governor called up 58- let us repeat that- fifty eight members of the National Guard- to prepare for the oil that everyone knew was coming. This from the same Governor who practiced the "duality of Republicanism" - simultaneously criticizing the Obama administration for doing too little, and for creating too big a government.

It would serve the Governor of Mississippi and the people who voted for him right if the Obama administration told him that because of rising budget deficits and because of the concept of limited government, that the Federal Government could do nothing for the shores and beaches of Mississippi....except lead a prayer on the floor of Congress.

RE: The contretemps of the Listserv, we received this wonderfully imaginative comment:

Rump, we type on a listserve that has walls, and those walls have to be guarded by men with keyboards. Who's gonna do it? You? You Rick Freedman? I have a greater responsibility than you could possibly fathom. You weep for Leacock, and you curse the FACDL. You have that luxury. You have the luxury of not knowing what I know. that Leacock's lambasting, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives. You don't want the truth because deep down in places you don't talk about at parties, you want me on that listserve, you need me on that listserve.

Fake Jude "The Hammer" Faccidomo

PRESIDENTIAL SUCCESSION: For those of you who pay attention to these matters, and we do, with the death of Senator Byrd, 85 year old Senator Daniel Inouye becomes President pro tempore of the Senate. As such, the Senator is 3rd in line to the presidency behind the VP and speaker Peolsi. Inouye, the Senator from Hawaii, is an Asian American who lost his right arm fighting in the Pacific for his country in WWII.

Guns, guns, more guns.

Yesterday the Supreme Court ruled that the 2nd Amendment mandates that all citizens over the age of 18 carry a firearm. Or something like that. It was Justice Stevens final dissent. And guess which favourite federal blogger's BFF was in the Majority?

The majority's blatant disregard of the first clause of the second amendment is a startling example of judicial activism. The first clause of the amendment states s that a well regulated Militia is necessary to the security of a free state. This clause clearly limits the right to bear arms for the purposes of a Militia that was necessary in the 1770's. We don't know about Justices Alito, Scalia, Thomas, Kennedy, and Roberts, but we haven't seen our local Militia marching down the street lately. But because they're conservative, and because they were put on the bench by those who worships guns like they worship the lord, their ox was gored, and they resorted to the sort of judicial determinism that Republican Senators are currently bemoaning that Ms. Kagan may resort to if confirmed.


In a speech to a California State University fundraiser, the former candidate for the vice president of the United States said this:

"...this is Reagan country and (applause), YEAH! And perhaps it was destiny that the man who went to California's Eureka College would become so woven within and inter-linked to the Golden State..."

Ronald Wilson Reagan, the 40th President of the United States, went to Eureka College in Eureka, Illinois, you idiot. Reagan was born in Tampico, Illinois on February 6, 1911. He was raised in Illinois and went to Iowa to broadcast baseball games before he ever made his way to California.

We all know Palin is a simpleton. We now know that she is so stupid that she cannot even hire competent speech writers. We are in favour of a law prohibiting this idiot from every mentioning the name of the 40th President of the United States. She does not have the intellectual capacity to have brewed coffee in the Reagan White House, much less make the startling claim to be the heir to his political movement and ideology. She makes us ill.

See you in court, having recovered sufficiently from the ill effects of too much lager commiserating the loss of our lads in the World Cup to the Germans.

Monday, June 28, 2010


There is for once, a happy ending to a startling and sad kidnapping caper:

From: David Sisselman
Sent: Monday, June 28, 2010 12:03 PM
To: All BHB Building Users
Subject: Thank You for your kind thoughts

To all of you who have wished me well in my time of loss, Thank You for your kind thoughts. This morning, due largely to the executive activation of the PD Delta Team, my purloined Blue C.R.B.s have been anonymously returned. I thank all for their willingness to contribute to the ransom , but millions for Defense but not a cent in tribute.




Germany 4 England 1.

The World Cup has ended for us. Please don't mention this for another 4 years or so.

True fact: In the stands during matches between Germany and England, the German fans chant "3 world cups" because of the German championships won. The English fans, with only one world cup to our credit, chant "two world wars." It's all lots of fun.

Good Monday Morning as we head into the 4th Of July Holiday weekend, a lot of lawyers and Judges today will be looking to make it a quick and quiet week.

Word reaches us this early Monday morning that Senator Robert Byrd of West Virginia has passed away. The senator was 92 and holds the record for the longest serving member of congress at 57 years.

While the World Cup was fun (for a while), what is not so much fun these days is the FACDL listserv, which is turning into a Brazilian/Argentinian match.

Our favourite listserv user Talitha Leacock wrote this on Sunday:

Dear All,
I cannot resist. Anyone awake now for the FIFA World Cup who notices less vuvuzilla horns and now hearing "drums" and cheers? The beauty of the World Cup is the crowd actions reflect the particular Country playing?
I can't seem to find the game on a main channel so listening on the computer on a Spanish website in the background as I do work. All I need to hear is "SCORE" and I will know something great happened. This may be the first game I get to listen to from the beginning to the end

Anyways, enjoy your Sunday.
Best All,
And that missive prompted FACDL Sergeant at Arms Jude "The Hammer" Faccidomo to respond with this:

Dear Membership,

The listserve is intended for colleagues to exchange thoughts and ideas for professional purposes only. Please use it accordingly.

Additionally, due to certain concerns regarding listserve etiquette the board will be outlining certain guidelines to be followed when posting matters to the listserve. We will be addressing this issue at the June 30 board meeting. Anyone who wishes to be heard on the matter is encouraged to attend.

Although it is quite obviously counterintuitive, please refrain from posting any additional comments regarding other members personal use of the listserve.


Jude M. Faccidomo, Esquire

Rumpole says: we might just surreptitiously attend that June 30 "bored" meeting and tape the slap-happy self important wind bags pontificating on the sanctity of the listserv. Or we may just stay with our plans and fly off to the Vineyard for the long weekend.

And finally we print this because it is fun: There is a dastardly thief operating within the confines of the hallowed halls of the Public Defender's Office, and our own David Sisselman is the victim:

First there is this email, and then there is the ransom note printed below:

-----Original Message----- From: Lucian Ferster  Sent: Wednesday, June 23, 2010 7:04 PM To: All Users Subject: A Modest Proposal  Esteemed Colleagues:   With great sadness I must announce that David Sisselman's blue Chinese  relaxation balls (the selfsame relaxation balls that were recently addressed by  our own HR department) have been hijacked, kidnapped and held for ransom by vile  and nefarious terrorist thugs.  Sisselman, who is in a state of shock, received  a RANSOM NOTE today!  A  copy of same is attached.  Warning: viewing of the attached photo is not for  children, pregnant ladies, those suffering from cardiac or nervous conditions or  the fainthearted!  Our colleague, David Sisselman, has been rendered catatonic  by this cruel turn of events.  He has had an emergency psychological evaluation  and has been cleared of suspicions of malingering.  However, Dr. Suarez, in his  report claimed that, "Sisselman is suffering from acute separation anxiety."  Please view the ransom note to get the full sense of this disgusting and  horrific assault upon the peace and dignity of this fine office.  In the face of such catastrophic adversity, I present a modest proposal:  A BAKE SALE!  Yes, let us all pull together like good folks and bake cookies etc.; we will  sell them in front of the building on Friday at midday to raise the ransom money  demanded by these odious felons.  If you are interested, please contact David Sisselman and coordinate with him as  to what kind of cookies, pies, cakes or brownies you will bring.  Remember, united we can return Sisselman's beloved blue Chinese relaxation  balls.  With fraternal regards,  Lucian Ferster (A Good Samaritan)

Rumpole says: this is a matter for Talitha Leacock, or Jude "The Hammer" Faccidomo, or both.

Saturday, June 26, 2010



The biggest match of this world cup so far takes place today as our boys from England play the blokes from Germany. England and Germany have a long and storied tradition of world cup rivalry starting in 1930. Perhaps our lowest hour was when the team was instructed to give the nazi salute in Berlin in 1938. But we've won one world cup and it was a thrilling victory over the West Germans in our home stadium in Wembley, England in 1966. Unfortunately the Germans have won three. This is the 28th time our boys have faced the Huns, and the score is 12 apiece with three draws. Today will be fun, considering the papers in London compare the match to the blitz. We'll be hoisting a pint or two of bitter and cheering our lads on. Depending upon the results we may be off to a bit of a slow start tomorrow in court.

It was with a mixture of bemusement and haughtiness that we watched the American team in the world cup. Getting a tie against our beloved boys from England two weeks ago was difficult to swallow. But these Yanks had pluck, coming from behind again and again.

Their luck ran out today against Ghana, a team we believed the USA was fully capable of beating. The lads played their hearts out again, coming from behind one - nil, to eventually lose 2-1, in a match that was in doubt up to the final horn after 120 minutes. For the second time in two world cups, Ghana- a country the size of Oregon, has knocked out the USA from the world cup.

Having honed our competitiveness on the football pitch at Eton, we know of what we speak. The Yanks went as far as they deserved to. This was not Hockey in Lake Placid in 1980. There would be no "do you believe in miracles?" moments.

Football- what we here call soccer- is not our game. It is a game that belongs to almost all other countries, but not ours. We wouldn't expect Ghana to compete and win the Stanley Cup. We wouldn't expect Brazil to field a basketball team to compete with the LA Lakers. We don't expect Germany to challenge the NY Yankees at the world series. And there would be serious risk of death if Japan or China put a team in the NFL.

There is no reason to expect our lads could compete with the rest of the world on the Football pitch, but they made it out of the first round and were very competitive today.

Well done lads; well done indeed.

Friday, June 25, 2010


Here's the news you need heading into your penultimate July 4th weekend.

The Florida Supreme Court overturned the death sentence for one of the defendants who partook in a brutal kidnapping, rape and killing of an innocent young woman named Ana Maria Angel. Her boyfriend was also abducted, but survived being shot in the head. The Herald Article is here. The Supreme Court opinion is here. It does not mention who was on the brief for the defense.

Joel Denaro was the lead attorney for the defendant at trial.

We are not sure how we feel about this. If there was ever an argument for the death penalty, it would be the facts of this tragic case that involved depraved acts against an innocent young woman. There is nothing to celebrate here. A tragedy continues, and the wounds of the young woman's mother and family continue to get ripped open.

David O Markus with a K has all the latest on the Supreme Court's decision in the Honest Services issue. We're not sure how that's going to help us with our disorderly intoxications in Hialeah, but for those of you with white collar fraud cases in fed court, you need to read the opinion. David is ecstatic that his best-est friend on the Supreme Court was in the majority overturning the government's construction of the statute.

The 4th DCA rules for Jordan "Dr. Howard Dr Fine Dr. Howard" Breslaw and lets him use his long forgotten family name on the ballot in his erstwhile campaign for Judge in Broweird.

That's it for now. Bulletins at once. Stay tuned.

Wednesday, June 23, 2010


In a follow up to our criticism of Broward and every Black Judge who was up for re-election getting opposition, The Broward NAACP along with several other organizations is sponsoring a "Meet The Black Judges Of Ft. Lauderdale" on June 24 at the Mizell Center. Details here.

We continue our semi regular review of decisions by the best damn appellate court* on or near the FIU campus.

We start with a case from the Keys: In Bruce v. State, the lesson here is strictly for our robed readers: You can no longer deny pro se motions with impunity because a defendant has counsel. In Sheppard v. State, 17 So.3d 275 (Fla. 2009) the Supreme Court created a limited exception to striking pro se motions when the defendant has counsel. When the defendant moves to withdraw a plea the court must conduct a limited inquiry to see whether there is an adverse relationship between the defendant and his attorney. In Bruce, Bruce filed a motion to withdraw a plea and actually made the allegation of a conflict between himself and his attorney, so the case was returned to the trial judge to conduct an inquiry.

Here is the pertinent part of the ruling in Forbes v. State:

We defy you to correctly interpret what the holding is:

We agree with the defendant that the lab report was not admissible into evidence as an exception to the hearsay rule. See Hogan v. State, 583 So. 2d 426 (Fla. 1st DCA 1991) (holding that, at a probation revocation hearing, the business records exception to the hearsay rule is inapplicable when no one from the lab testifies as to knowledge of testing and reporting procedure; therefore the lab report is inadmissible). The lab report is nevertheless admissible as hearsay at a probation violation hearing. Isaac v. State, 971 So. 2d 908 (Fla. 3d DCA 2007). However, hearsay alone is an insufficient basis upon which to revoke probation.

Rumpole grumbles: Outside of certain theories in Quantum Mechanics in which something can possibly and simultaneously exist in two opposite states (ie., the window is open and closed, or in Schrodinger's cat, the cat is both alive and dead in the box) this decision is contrary to the fundamental laws of the universe. Either a lab report is admissible in a PVH or it is not. It cannot be both. Yes it can. (See how confusing that is?)

* we express our opinion only as to appellate courts on or near the FIU campus and not as to the 3rd DCA vs. any other appellate courts.

Tuesday, June 22, 2010


That Judge who was harassed by that "Gorilla Monsoon" looking gendarme was none other than retired Judge Rick Margolius, a/k/a Ric Zweig, as his website here explains everything.

Ric writes in the "royal we" on his site, as we do here, and that says something about class. In perusing his site we learned that he had a "much anticipated album" that was released in May, as well as news, blogs, and a must see photos section, which goes to prove that there is indeed life after the REGJB, and apparently a good one at that!

Ace PD David Sisselman was first with the guess and for that he wins lots of valuable prizes as well as public accolades.


The Colonel of County Court shot us a short email yesterday that Judge Jacqueline Schwartz has assumed responsibilities in courtroom 2-11, taking over for Judge Joe Fernandez, who has moved up to Circuit Court, taking over the calendar for Judge Bertie Soto, who is now chief honcho for criminal court.

Query: is this the first time that a one former spouse has taken over the calendar for the other? And isn't that just so 2010 ish?

Our readers were quick to clear up the question we had the other day. The Courts are closed Monday July 5, 2010 for the 4th of July Holiday. That means we're outta here Thursday July 1, 2010, and off to the Vineyard for the long weekend. It's really the place to be for those long summer weekends. Look for us at the Black Dog Tavern or Sharky's Cantina for some cold margaritas and of course the Beach Plum for dinner, but make your reservations now, unless you know Jill at the door. She's very sweet to us.

See You In Court real soon.

Monday, June 21, 2010


We received an email from a Judge. Can you tell who wrote it? Play for valuable prizes. We'll post the answer with a surprise tomorrow.

I had something interesting happen last friday as I entered the hallway to 524 on the 5th floor. Two Metro cops were exiting as I was entering, so I didn't need to enter the security code. I was attired in my standard civilian judicial garb, very long hair, jeans, no tie and sandals. One of the cops who closely resembled Gorilla Monsoon, said to me in a rather unfriendly tone. "You don't belong here" I replied "Why not?" He goes, "This is a restricted area" I go "Then why is my name on this door"? ... Wow, talk about a guy with a harpoon stuck thru his chest. It reminded me when years back, Carney was driving into the bldg. and his car rode over some grass, some cop said "Hey asshole". Carney rolled down his window and replied, "That's Judge asshole to you".

Rumpole says: We love the anecdote about the late Judge Carney. That was just like him, wasn't it?

Good Monday morning, today is the first day of summer and the longest day of the year. It would have to fall on a Monday, huh? Good luck to all of you labouring in the REGJB for truth and justice. Today is a travel day for Rumpole, but we will monitor the comments and get them up as soon as possible.


This is on the JAAB Broward as a re-post attributed to the

Including the circuit and county courts, there are 90 judges in Broward County. Of that total, there are only five blacks (there are six Hispanics). Seventy-nine judges are white. Of that total, 47 are Jewish. In your wildest imagination, do you see any way for that disparity to afford equity for people of African descent?

Suddenly, a pack of Jewish lawyers and prosecutors has decided to bankroll some of their group to run against all the black judges on the Aug. 24 primary ballot. Jewish “friends” of the black community plead that they are aghast at what’s happening, and profess their continued support for the retention of black judges.

Hey, you’d better wake up, black people. You know darn well what someone says before they vote, and what they do when they actually vote, could be two different things. Keep on trusting what other people tell you they will do as opposed to what you need to do for yourself, and you will forever be victimized by other people’s self interests."

Rumpole: these are dangerous words. Yet they reveal feelings that run deep. And since the facts support the sentiments that the article expresses, this must be discussed. Why is every African-American judge who was up for re-election this year in Broward challenged? Why was Circuit Judge Elijah Williams, who is a good a judge as you will ever come across challenged? You may remember Judge Williams spectacular resignation from Chief Judge Dale Ross's Diversity Committee, which we reported here, and in which Judge Williams famously stated "he would no longer carry the white man's water." You will also recall that Judge Williams donates a portion of his judicial salary to charitable organizations in Fort Lauderdale.

All in all the situation in Broward stinks to high hell. One way to address this matter is for lawyers in Dade who care about the judiciary to financially support those Judges in Broward like Elijah Williams who should never have received opposition.

Yes, you read that right. Rumpole is advocating on behalf of some Broward Judges.

And you thought you had seen everything.

Saturday, June 19, 2010

JUNE 18, 1940

On the BBC on June 18, 1940, radio's crackled across France with a familiar voice announcing:"This is General Charles De Gaulle" . On June 17, 1940 Vichy France surrendered to nazi Germany. And the very next day, and seventy years ago Friday, General De Gaulle announced the French Resistance. The war was not over. All had not been lost. Viva La France!

Good Saturday Morning, and this is the news you need to enjoy your Father's Day weekend.

More good news: Drinking several cups of tea or coffee (especially tea) appears to lower your risk of heart disease by 33%. The BBC has the info here.

What's in a name?
A lot if you are attorney Jordan Howard Breslaw (Dr. Fine, Dr. Howard, Dr Fine). Palm Beach Circuit Edward Garrison issued an emergency injunction in favor of North Of the Border Judge Mary Rudd Robinson preventing Breslaw from using the name Breslaw on the ballot when h has practiced under the name Jordan and his two children both bear that last name. Apparently genius Jordan thought Breslaw, which was an old family name he had abandoned, would be more favorable to the large number of Jewish voters in Broward. The Daily Pulp has the scoop on this pile of crap here.

As our dear Bard wrote:

What's in a name? that which we call a rose
By any other name would smell as sweet;
So Jordan would, were he not Breslaw call'd,
Retain that dear perfection which he owes
Without that title. Breslaw, doff thy name,
And for that name Breslaw which is no part of thee.....

If he hasn't called you up by now and told you himself, Sharpstein won a big one in Federal Court. Former Dade ASA Karen Gilbert continues her losing streak for the government. Gilbert was one of the AUSAs who imploded in that trial against the doctor David O Markus represented.

And speaking of Markus, he's been watching the Wizard of Oz again, as he accuses us here of creating an illegal, improper, and unethical "straw man" argument regarding his Folie a deux with Justice Scalia. Or is it a Pas de deux?

Can anyone tell us if the REGJB will be closed Friday July 2? We're trying to make reservations on the Vineyard.

See You in court Monday.

Thursday, June 17, 2010


The title of the post links to a fascinating decision in State v. Yaqubie.

Yaqubie stabbed and killed someone. Own our Richard Hersch came to court on behalf of Yaqubie armed with self defense. Under Florida's new self defense statute, the defendant is entitled to seek immunity from prosecution pursuant to section 776.032 Florida Statutes. Hersch made such a motion.

Enter Judge Trawick, who treated the motion as a "c(4)" motion to dismiss. Finding that there were material facts in dispute, Trawick denied the motion.

"We'll just see about that" said Hersch (or words to that effect.) He stood his ground and took Trawick up on appeal.

Enter the 3rd DCA and Judge Wells who said that the proper standard for such a motion for immunity was enunciated in Velasquez v. State, 9 S0. 3d 22 (Fla. 4th DCA 2009) which held that the trial court must determine by a preponderance of evidence whether the defendant acted in self defense and is thus immune from prosecution.

What else do you need to know? That the court cited with approval other courts in holding that the current status of self defense in Florida is that the statute is a true immunity provision and not an affirmative defense and as such the trial court is required to resolve the disputed facts and issues to see if immunity is applicable. Affirmative defenses are passed on to the jury to resolve while true immunity issues remain the providence of the trial court.

This is a significant distinction that any competent criminal practitioner must know.

There's another part of this decision reversing Judge Trawick for partially granting a motion to dismiss and reducing the charge from second degree murder to manslaughter. But that part of the decision is old hat- a c(4) motion tests the sufficiency of the charges and not whether the state can secure a conviction at trial, blah blah blah.

The case was remanded for an evidentiary hearing and for Judge Trawick to apply the correct standard.

It is a nice win for Richard Hersch on a relatively new area of the law.
And for that Richard and his firm receive the coveted "well done" from Rumpole.

Tuesday, June 15, 2010


Longtime and careful readers of our blog and Mr. David O Markus with a K's blog know that Mr. Markus has engaged in a long and continuing battle with us over Justice Antonin Scalia. Despite his Harvard education, Mr. Markus somehow clings to the belief that Justice Scalia is the best friend a criminal defense attorney has on the US Supreme Court. We have continually alleged that Scalia is a rank statist (you robed readers can click on the word for a definition) .

We shall now endeavor to examine the opinion in Holland v. Florida, to see who is right.

The facts are simple- Holland - a death row prisoner, had an ass for a court appointed attorney who missed the 2244 post conviction relief deadline. Out of time and seemingly out of luck, the 11th Circuit affirmed the District Court's denial of Holland's pro se request to toll the deadline. In a 7-2 opinion, Justice Breyer wrote for the Supreme Court that the time provisions of 2244 are subject to equitable tolling and that a lawyer's negligence can possibly satisfy the extraordinary circumstances required for equitable tolling.

Along comes Scalia in dissent with- (guess who? Stevens? Ginsberg? hahahaha) Justice Thomas. Note that the facts of this case are so extreme that even Roberts and Alito joined the majority, although they must have steadied themselves with a few stiff shots before agreeing to do so. (Alito concurred in part, and dissented in part because he didn't get a stiff enough drink.)

Scalia has two problems with the decision: first a complicated and somewhat convoluted argument about statutory interpretation; and second (and more important for our purposes) Scalia offers a rousing defense for incompetent attorneys and attempts to eviscerate the right to counsel.

Scalia looks to for ways to uphold the strictest possible reading of the statutory deadlines in 2244. He finds it in a string of 50 year old cases that examine the negligence of retained counsel in civil cases.

Because the attorney is the litigant’’s agent, the attorney’’s acts (or failures to act) within the scope of the representation are treated as those of his client, see Link v. Wabash R. Co., 370 U. S. 626, 633––634, and n. 10 (1962), and thus such acts (or failures to act) are necessarily not extraordinary circumstances.

Now, what about that pesky part of the sixth amendment right to effective counsel in criminal cases? To rule for the government, Scalia needs to take out his knife and do some carving:

"To be sure, the rule that an attorney’’s acts and over- sights are attributable to the client is relaxed where the client has a constitutional right to effective assistance of counsel. Where a State is constitutionally obliged to provide an attorney but fails to provide an effective one, the attorney’’s failures that fall below the standard set forth in Strickland v. Washington, 466 U. S. 668 (1984), are chargeable to the State, not to the prisoner.
(Rumpole notes: so far, so good).

But where the client has no right to counsel——which in habeas pro- ceedings he does not——the rule holding him responsible for his attorney’’s acts applies with full force. See Coleman v. Thompson, 501 U. S. 722, 752––754 (1991).4 Thus, when a state habeas petitioner’’s appeal is filed too late because of attorney error, the petitioner is out of luck——no less than if he had proceeded pro se and neglected to file the appeal himself.


Let us put that in English for you: If you're poor and already convicted, you are stuck with the lawyer you get no matter how bad (or braless- see our previous post) he or she may be. If you're poor and not yet convicted, you may get the benefit of a Strickland v. Washington analysis if your lawyer was incompetent. But once you lose, you have no right to complain about how bad your lawyer is at the next level. It's not like innocent people have ever
been sentence to death and then vindicated through the great writ of habeus corpus, right? Of course not.

Scalia ponders what the possible reasons are that caused the attorney in the case to miss the deadline. Included in his pondering are that the attorney "missed in the mail" the opinion from the Florida Supreme Court, or even that "it simply slipped his mind." Woops. An attorney forgets about a man on death row who claims he is innocent. "What to do? What to do?

Well for Scalia, it's simple- he is a statist true and true in all cases requiring strict construction of statutes, unless you're last name is Bush and you don't want all the ballots in Florida counted. But if your last name is Holland and you are on Death row- here is all Scalia can muster for you:

Such an oversight is unfortunate, but it amounts to ““garden variety”” negligence, not a basis for equitable tolling.

One wonders how Justice Nino Scalia would feel about "garden variety" negligence in perhaps a heart surgeon performing a bypass on him or a loved one?

"Sorry Mrs Scalia- but the surgeon forgot to clamp off an artery. It slipped his mind. It's garden variety negligence and your husband is dead. Have a nice day and thanks for using GW Hospital."

Let us boil it down to simplistic terms that even great trial lawyers who unfortunately happened to attend law school in Cambridge can understand: In Justice Scalia's world, the people serve the law, not the other way around. The law does not serve to ameliorate human suffering or right wrongs. Indeed, to preserve order in the State, the law imposes strict deadlines that must be obeyed no matter what the consequences in human terms.

To Scalia, the law is a monolith that just is. Judges interpret writings on the monolith and apply it's exact meaning (unless the monolith happens to count some humans as 3/5th the value of others- then the monolith has to be read in terms of the time when it was written. ) But other than that, what is etched in stone goes, no matter what.

In Scalia's world- a law forbidding swimming on Sundays would require all lifeguards and bystanders on a beach to watch a child drown, because unfortunate as that event is, the law must be obeyed and is not subject to whimsical interpretations based on individual human need.

Under Scalia's interpretation of 2244, an innocent inmate who has missed the 2244 deadline and who is scheduled to be executed MUST be executed even in the face of 100% proof of actual innocence, because the law, like all orders from above, must be obeyed.

You can have Justice Scalia and his black and white world. David can have him too, although we doubt he agrees with this decision.

We choose to work for a law and a society that serves the citizens, not the other way around.

See You in court.

Monday, June 14, 2010


UPDATE: Retired County Court Judge Henry Oppenborn has passed away. The Obit is here. Those who practiced before Judge Oppenborn remember a wonderful, warm man who was the epitome of a Judge. He was dignified, fair, and considerate of all of those who appeared before him. Judge Oppenborn was a paratrooper who had active service in the Korean war where he received the Silver Star and the Purple Heart for being wounded in battle. Judge Oppenborn was awarded the Silver Start for bravery for leading soldiers to rescue his men who were wounded and being held at an enemy stronghold.

Judge Oppenborn started every court session by inviting (not requiring) all of those who appeared in court to rise and recite the pledge of allegiance. This was not some political ploy, but the genuine act of a good man who was a real American. He risked his life for his country and served our nation and our community and we are all the better for it. Rest in peace Judge Oppenborn.

UPDATE: We neglected to mention that our own Barry Wax was elected to something important at the FACDL conference at the Motel 6 in Orlando. Barry will be responsible for keeping the lights on for the FACDL conferences. Just kidding. His service and all the time consuming work all attorneys do for FACDL and NACDL is donated and serves an important role in protecting the role of criminal defense attorneys in our system.


DRAMATIS PERSONAE: Attorney Brittney Horstman who was stopped from entering FDC (that's the Federal Detention Center for our state court robed readers.)
Jay Weaver- Miami Herald Reporter following a "hot" story.
Brian Tannebaum, Miami attorney; bon vivant, and current present of the statewide Florida Association of Criminal Defense Attorneys.

First- Ms. Horstman's tale of woe: She attempted to enter FDC to see her client. The metal detector went off. Ms. Horstman was wearing a bra with wired support. She was denied access to her client. Ms. Horstman removed the offending underwear and cleared the metal detector, but she was again denied entry to see her client because at FDC their motto is " We live to make you miserable." and because she was now NOT wearing the bra that caused the problem in the first place.

Just to recap for our readers who work at FDC- Ms. Horstman could not see her client because she was wearing a bra and she could not see her client when she was not wearing her bra. See how easy that is?

Anyway, Ms. Horstman sent an email on the FACDL listserve which is a system where select lawyers can chat with each other though email. Or something like that.

Mr. Weaver wrote an article (the title of this post links to the Weaver article) on Ms. Hostman's umm...double dilemma.

And then along comes our intrepid FACDL MIAMI President SABRINA PUGLISI WHO SENDS THIS EMAIL:

Here is Mr. Tannebaum's email about the Weaver article:

You may have seen the article in Saturday's Herald regarding Brittney
Horstman's bra issue at FDC the Friday before last.

First, let me assure everyone that Jay Weaver is not a member of
FACDL-Miami nor does he have access to the listserv. The reason that he had
copies of the emails from our list is because a member forwarded the emails
to him. This is not acceptable. I remind everyone that our listserv is for
members only. We should not feel that what we write is being forwarded to
Judges, prosecutors, media, etc. The board will be looking into this matter
and I will advise with further information as I have it.

Secondly, as soon as I became aware of Brittney's situation, I advised
Kathy Williams. She contacted the new warden who personally looked into the
situation. The matter was promptly resolved.

Here is Mr. Tannebaum's email on L'affair la Bra:

While I agree these emails are meant to be kept within the membership, I think we've lost that battle. Jay Weaver is a fair and ethical reporter and wrote a great story.

I've had it with this FDC issue. That Kathy Williams has to remind them monthly, quarterly, or yearly that common sense should play a role in the administration of that facility, is disgraceful. I'm tired of the meetings, phone calls and memos all in the name of treating our colleagues with a little damn respect. Sometimes diplomacy works, and sometimes it doesn't. What happened to Brittney is pathetic, and we should all make clear that this bullshit, and it is bullshit, is unacceptable.

Now whomever is our little mole, go ahead and forward this to FDC,
put it on Rumpole's blog, pass it out to your friends. If I have to wait 3 hours next time I go to see my client there, I don't really give a crap.

Rumpole says: What did we do? Why is Tannebaum taking a cheap shot at us?
We almost never reprint those charming FACDL Listserv chats which are usually something like:

"Does anyone have the Miranda cite memorized? I need it asap."
"Look it up yourself you lazy lummox."
"Can anyone cover my 8am in West Palm and my 8:30 in South Dade tomorrow?"
"Do it yourself jackass."
"Can anyone get me into Prime 112 this Friday night at 8?"
"Stop showing off."
"Did that Judge in Jacksonville overrule Marbuy v. Madison."?
"Please, I need to impress my girlfriend. Can you get me a table at 112.?"

You get the idea.

Anyway, Bras, moles, and defense attorneys who shed undergarments all in the name of protecting their clients. Isn't this fun?