Friday, March 30, 2012

Preserving the Record for Appeal




Borrowing a term used by South Florida Lawyer, they describe the ongoings of our esteemed jurists who reside out West by the FIU campus as practicing in the "bunker".....

Today's sap is Joaquin Blanco. Mr. Blanco was arrested back in 2008 under case number F08-41616. Mr. Blanco was charged with trafficking in amphetamines when he sold crystal methamphetamine to an undercover police officer. Blanco claimed he was induced into making the sale by Jesus Felizzula, a State confidential informant who Blanco met at an HIV facility.

What say you 3rd DCA? "Because we find that the errors complained of were waived or harmless, we affirm."

Defense counsel’s request to voir dire the jury panel regarding their opinions on entrapment was denied. Thereafter, defense counsel accepted the jury without renewing his objection to the restricted voir dire.

There were several appellate issues, but the meat of the appeal, where the case was going to rise or fall, was the issue of the denial by Judge Tinkler Mendez of Blanco's counsel's request to voir dire the jury regarding the entrapment defense. And the last sentence of this section of the appeal is the real "rub" in the case - more like a rub in the defendant's face.

"Blanco contends that the trial court erred in denying defendant’s request to voir dire the jury regarding the entrapment defense because this prejudiced his effort to obtain a fair and impartial jury. Counsel should be given some leeway in questioning prospective jurors regarding their understanding of defendant’s defense. See Lavado v. State, 492 So. 2d 1322 (Fla. 1986); Walker v. State, 724 So. 2d 1232 (Fla. 4th DCA 1999). But, it is well settled that counsel must renew any objections to voir dire errors before accepting the jury. See Lavin v. State, 754 So. 2d 784 (Fla. 3d DCA 2000); Stripling v. State, 664 So. 2d 2 (Fla.3d DCA 1995). Here, defense counsel’s request to question the jury about entrapment was denied before voir dire commenced. Thereafter, defense counsel accepted the jury panel without renewing his objection to the trial judge’s restrictions. Accordingly, the error was not preserved below, and relief is unavailable by direct appeal."

So, what Judge Ramirez (along with Judges Suarez & Rothenberg) is telling Mr. Blanco, is sorry Charlie, (or better stated, Joaquin), but your lawyer dropped the ball, and you'll just have to catch us on the flip side with a 3.850 in order for us to entertain the "meat" of your argument on appeal.

Meanwhile, Blanco, who was taken into custody following the trial, on May 12, 2010, waited 22 months for his appeal to be heard and decided, and who has a scheduled release date from the Florida DOC of October 29, 2012, will undoubtedly be out of custody before any meaningful decision is reached on whether trial counsel's ineffectiveness, in not preserving the record, warrants Blanco a new trial.

Might they have saved the judicial system a lot of money by having the issue briefed and argued as part of the appeal? I know, appellant attorneys and judges are turning over in their bunkers right about now as I am sure there is some Rule of Appellate Procedure they starts with the number 9 that prohibits this from happening.

But, meanwhile, Blanco will have done his 30 months on his 36 month MM sentence. For good measure, Blanco does have another two years of probation that he must serve upon release. So, maybe he will learn his fate whilst reporting to probation.


Cap Out ......

Wednesday, March 28, 2012


The setting: The highest court in the land.
The date: Tuesday March 27, 2012. 

Donald B. Verrilli, Jr., the Solicitor General of the United States strode to the podium to address nine justices, of whom at least five were going to be hostile to his defense of the use of the commerce clause to make health care legislation constitutional. 

The courtroom was hushed. The moment historic. And Mr Verrilli.....stammered. Then he coughed. Then he cleared his throat. Then he grabbed his glass of water. 

And within a few moments Justice Scalia pounced with the most favourite and tried and true argument in the arsenal of every conservative: "If the government can do this (the health care mandate) what can it not do?" Scalia thundered. Verrilli stammered. It was not pretty. 

But the questions were not surprising. This was no ambush. Verrilli had to know the questions were coming, and yet he acted more like a first year moot court student who read the wrong problem rather  than the SG of the US. 

Chief Justice Earl Warren worked hard to engineer a 9-0 opinion, giving ground on several points to get Justice Frankfurter on board. What does it say about CJ Roberts that the very best outcome in case will be 6-3? This court, like this country is politically polarized and that is not good. 

“If the stars should appear one night in a thousand years, how would men believe and adore; and preserve for many generations the remembrance of the city of God which had been shown! But every night come out these envoys of beauty, and light the universe with their admonishing smile.”
Ralph Waldo Emerson,  Nature and Selected Essays. 

Some of us find our Stars in the most unlikely of places. 

See You In Court. 


Time to jump back into the fray courtesy of our new blogger: The Barrister of Ballentrae.

I was asked by H. Rumpole to write a piece further explaining my belief that personal use and possession of drugs Should Not Be Illegal. I know that the first question is who is Rumpole; and I can only say he looks like Gary Cooper.
Many may suspect that this article will argue primarily for decriminalization of Cannabis. That a comparison of risk versus benefits and the relatively lack of harm of the herb justify its legalization. For those interested in Cannabis legalization, that please go to the NORML link,

For those Nay-sayers on Cannabis, please go to this link, Cannabis and Cannabinoids. 
This is a link to The National Cancer Institute at the the National Institutes of Health, document clearly the lack of danger and high level of benefits of Cannabis.
I need to start with a proposition that to use intoxicants , is Natural, Universal , even Archetypical, of Humans. Our Species historically has ingested substances to intox, impair and alter their/our perceptions. In every culture across the world , across recorded history, our species had used nature. Rum to British seamen. rice wine or rice beer to the builders of the Great Wall. The German Beer Law comes from the need to stop the use of wheat in beer production, causing the price of bread to dramatically increase , so the limited beer to barley.. In cultures that shun alcohol, cannabis as leaf, kif or hash is smoked, as is the poppy [ opium].  In North America Tobacco, mushrooms, and in our South West the indigenous peoples had peyote and mushrooms. In the Andes other organics, like Ayahuasca and coca leaf are used. Four -Thousand ( 4,000 ) years ago , at the beginning of Human recorded History, Egyptologist tell us that, there`are records detailing how much beer a day was supplied to the labor who built the pyramids. Ten-Thousand years ago, Those that dig in the Neander Valley tell us that they have found evidence of ritual use of drugs and consumption of beer like beverages, dating back about Ten to Twelve Thousand ( 10,000 - 12, 000 ) years ago. It is hard not to believe the anthropological evidence. Likely we Humans did not start ingesting for intoxication then, Ten - Thousand ( 10, 000 ) years ago, but we were ingesting to intox, impair and alter our perceptions FIFTY THOUSAND ( 50, 000 ) Years Ago .
Given our historical archetypical use , it can be said that use / possession is not in and of itself morally, spiritually or physically harmful nor evil. Instead it is Natural, Universal , even Archetypical, of Humans to ingest substances to intox, impair and alter their/our perceptions.

 BUT , Let me be clear, Let me scream it:

Now we must ask : What Power Does Our Government Have to Tell US, as Free Adult Citizens , What Our Intoxicating Substance Can Be. We are free willed and responsible for ourselves. Remembering the above, that DUI / DWI is and should be illegal , what right does Government have to tell me what I can use for my buzz? The Crime associated with Drugs arises from drug laws, just as crime arose from Prohibition. In Fact Alcohol Prohibition is the perfect example. By Outlawing something that people were going to do , it made criminals out of ordinary men and women, who only wanted a drink. It bred disrespect for the law, for a law that people do not like and will not follow is ignored and creates a atmosphere that all laws can be disrespected. Worse, real criminals organized to supply the forbidden but thirsted for substances. Was Capone that different from today's Mexican drug gangs or the ones us old timers remember from the Mutiny, those of Medillen and Cali .
Removing the prohibition removes most of the criminal element, does not breed disrespect of the law and most importantly does not turn everyday people into criminals by use or possession of the malum prohibitum. Liquor Stores have ads not turf wars. The States where Marijuana is not criminal have shown no increase in crime, nor are California medical marijuana stores hell-holes.
Now borrowing a page from Ron Paul. Where does the constitution authorize the Government to tell be what I can use to intox or impair myself? Seriously , the personal use of substances does not justify federal nor State action. I do recognize the right of the Federal Government to prohibit Importation. But under what stretch of the commerce clause can the Government say I cannot get high? Tell me how that is justified. Its clear` that the WAR ON DRUGS began as a policy to get those who are against President Nixon's political action and not over societal decay due to drugs. Richard Nixon and his cronies need to clamp down on the long haired anti-war hippies and the uppity civil righters, who were rioting and burning the citys and worse voting against Republicans. They all smoked dope , so going after dopers seemed hard on crime and got rid of the 'ememies'. Listen to the Nixon tapes and you will learn how manipulative and anti-citizen Our President could be. Nixon's Federal War on Drugs was created in truth to get the Young anti-war movementers and young black activists out of the voting rolls.
Let us now turn to the Utility or Efficiency of The War on Drugs. Drug use over the last Forty (40 ) years has stayed at relatively the same rate. Some will, Some will not. Some like this, Some like that. The all out effort of the feds and the state governments have not stamped out the desire. But as I have` advanced at the beginning of this article , it is Natural, Universal , even Archetypical, of Humans to ingest substances to intox, impair and alter their/our perceptions. In every culture across the world , across recorded history, our species had used nature this way and laws will not stop that.
I know some will advance the argument that we are protecting society from the harm of abuse. The desire to intox is natural and not evil and that the bad results of drugs flow from its illegality. Considering that we can not or have not cut the desire, who and how are we protecting society by creating crime and disrespect for the law. Others will suggest that we need to protect the user from Themselves { yes I change tense. I like 3rd person plural instead of He/She Her/Him, etc}. So we make convicted felons out of users to protect then from the 2 or 3/10s of a gram [ 2 or 3 /280 of an oz. } of powder or rock. Broward sends them to prison. They can not get work as convicts, can not drive, can not vote. This is To Protect Them?

Last week I reviewed Two ( 2 ) days calendars of Four ( 4 ) Felony / Circuit Court Divisions in the Justice Building. I counted the possession, possession w/ intent, delivery & sales and tampering . I Did NOT count any grow houses or trafficking type cases. It is also important to remember that it cost almost One Hundred ( $ 100 ) dollars a day to imprison someone. Booking costs at least that. In TWO Days ( 2 ) THIRTY - FOUR ( 34 ) people had arraignments for felony drug arrests .Seven (7 ) were No Actioned,Fourteen set for Trial. ONE HUNDRED SIXTY FIVE (165 ) extra days Beyond CTS in DCJ was given , remember at 100 / day { that's $16500 tax dollars} , the rest were Bound-Down to County or CTS. What a waste of Time, Money and Effort.
Div 7 8
Div 10 10
Div 16 8
Div 21 8
The War on Drugs is FORTY ( 40 ) Years Old. I have been practicing a quarter century. I have not seen a change in the flow of arrests for drug possession at the Justice Building. To continue a policy that does not work, is repressive , wastes resources and tax dollars is Bad Policy, if not stupid. Legalize it. Or admit its a money maker in court costs . That is unlikely since it seems it costs more to arrest , process and lock-up that comes back in court costs, especially from the indigent. Perhaps we can make it a civil infraction and give a ticket. THAT, at least would raise revenue and make sense.

Tuesday, March 27, 2012


UPDATE: Dresnick signed the disqualification order. Can someone explain to us why he signed an order for a motion that was so clearly untimely as per the rules of Judicial Administration? 

Will arguments today at the U.S. Supreme Court  may just well herald the beginning of the end of judicial activism via the Commerce Clause? We will be listening to the arguments this afternoon and tonight. 

Who wants to be the next lawyer to argue a stand your ground motion to a court or jury? Not us. 

When will a real criminal defense attorney step forward and start defending George Zimmerman? While we have our concerns about his actions and the non-action of the Sanford police department, there is beginning to be the drum beats of a lynching of Zimmerman before the man is even arraigned.
Can Zimmerman get a fair trial in Florida or anywhere? 

It's been nothing but one headache after another for top tough-guy lawyers Michael Tein and Guy Lewis in their multi-million dollar defense of two members of the Miccosukee tribe in a fatal car accident case. At issue is who paid the former feds? The family or the tribe? The lawyers testified that the family paid them 2-3 million dollars and the family says that was the last of their money and they cannot pay the judgment. 

"Horse-hockey!" (or words to that effect)  replied Judge Dresnick who found that the lawyers committed perjury (a fancy word for "liar liar pants on fire"). There are depositions and a hearing on sanctions set for  May and wouldn't you know but that Tein and Lewis have just decided that kindly old Uncle Ronnie Dresnick can't be fair. 

Dresnick was alleged to have said "I can say 'pass the peace pipe' " during a hearing in August. And although the Rules Of Judicial Administration require that motions for judicial disqualification be filed within thirty days, Tein and Lewis decided now was the time to act. What's seven months between friends? The Herald recounts the kerfuffle here. 

Cowboys and Aliens (which was a better movie than the critics gave it credit for) anyone? 

See You In Court. 

Monday, March 26, 2012


Starting today the Supreme Court begins three days of historic arguments on the challenges to the current health care law.  The case will receive a total of six hours of oral arguments,  the most the court has scheduled in the last forty years. 

In this corner, sporting a natty salt and pepper mustache is Donald Verrilli Jr., the Solicitor General of the United States.  This will be Mr. Verrilli's lucky thirteenth argument before the high court and he will be defending the law. 

In this tea party/US Chamber of Commerce sponsored corner  is
 Paul D. Clement, a former Solicitor General of the United States (under the Bush-duh! administration). Mr. Clement, the current darling of the right,  will be arguing his 54th case before the U.S. Supreme Court.  Mr. Clement has argued more cases before the Supreme Court since 2000 than any other lawyer. He is a formidable opponent. 

During the three days of oral arguments, the court will address four separate issues and both Mr. Verrilli and Mr. Clement will handle three of the issues.  On Monday the court will spend 90 minutes on our favourite issue: "why are we here?" otherwise known as the jurisdictional issue. Specifically the court will examine whether the 1867 Anti Injunction Act which forbids suits for the purposes of restraining the assessment or collection of taxes applies to this case and makes the rest of the arguments moot for lack of jurisdiction. 

But Tuesday is when the fireworks will really  fly when Verrilli and Clement face off for two hours of oral argument (two hours!!) on the issue of whether the law's "mandate" requiring everyone to obtain health insurance is constitutional. Does the interstate commerce clause of the constitution give congress the power to pass a law with such a requirement? 

For those of you who have been to a Federalist Society meeting you know how the commerce clause argument bugs conservatives. The commerce clause  has been used to uphold laws as varied as civil rights laws (remember Katzenbach v. McClung,  379 U.S. 294 (1964) and Ollie's Barbecue?) and laws preventing farmers from eating the wheat they grew (Wickard v. Filburn  317 U.S. 111 (1942) has always been a thorn in the side of the Tea  party/Federalist/Scalia/Thomas crowd). 

The question for legal theorists has never been about whether discrimination is OK, but whether the constitution specifically prohibits it and whether the use of the interstate commerce clause has just been a legal fiction to boot strap social legislation engineered by the courts. In other words is it good to decide cases by whose Ox is gored?  Because if the courts can do that (which you might agree with like the civil rights cases) what can't they do (like stop you from eating  the wheat you grow)? Just don't mention Bush v. Gore to conservatives because that makes them  uncomfortable. 

Rumpole predicts that the mandate argument is where Scalia and Thomas see the meat of this case and a hunting they will go with Roberts and Alito to get "Two sides Tony"  Kennedy on their side of the issue.

The  schedule for the remaining arguments  is  that for ninety minutes on Wednesday morning the court will hear arguments on severability and at 1:00 pm  Wednesday there will be an hour of arguments on expanding medicaid under the challenged legislation. No truth that ESPN will be broadcasting the arguments live but for you appellate nerds, the SCOTUS blog will have audio and transcripts of the previous days arguments on line. 

See You In Court.

Wednesday, March 21, 2012


BREAKING: John Goodman (Roy Black's client) was convicted of DUI manslaughter and vehicular homicide in West Palm Beach Friday afternoon. Many members of the South Florida legal community have been following the trial through streaming coverage on the Internet. The Defendant was taken into custody. Sentencing is for April 30, 2012. As an aside, we believe that the defendant cannot be sentenced on both counts.

Rumpole's Rule Of Trial #2: Avoid at all costs a Friday afternoon verdict.

We want to keep the discussions on this topic going, so we are going to leave the post up a while longer. But this is just crazy: if you type in the word "illuminati" backwards into the address bar after www and add dot com you get taken to the National Security Agency website. Weird. 

Sorry, we know this is off topic, but the NY Times reports that the consumption of even one sugary drink a day was linked to a 19% increase in heart disease. The study followed 48,833 male health professionals over 22 years. 

So put down the coke or pepsi and step away from the glass. It can kill you. 

A Florida Grand Jury will be impaneled to investigate the death of an unarmed seventeen year old minor child.  Trayvon Martin was shot and killed by a 26 year old neighborhood watch volunteer. 

We just can't help but think that if the roles were reversed and Trayvon Martin shot and killed Mr. George Zimmerman that Trayvon Martin would have been immediately taken into custody under the "arrest now, let the jury sort it out five years from now" philosophy we all too often encounter. 

So what's different about this case? Nothing other than the respective races of the individuals. Sorry, but do you really think the police and state attorney would have been so deliberative if the shooter was an African-American teenager? In our experience we have never seen that type of caution. 

We are not advocating the lynching of Mr. Zimmerman. Nor do we decry the failure to immediately arrest him. Getting the facts and getting it right is important. The delay just becomes harder to swallow because we all know the matter would have been handled differently if the roles were reversed. 

Or at least gets you a withhold and $3300 in fines. Remember the City of Miami Officer Fausto Lopez? He was  popped for speeding in Broward by FHP last year.  The incident set off an internecine war between the two departments. Ace criminal defense attorney (and soon to be Federal Magistrate) Bill Mattheman has negotiated a plea to a withhold and costs of prosecution. No probation. 
The Herald reports that Officer Speedy averaged +100MPH on his way to work 114 times in the year before he was pulled over by FHP. 

Quite a commute.

See You In Court. 

Monday, March 19, 2012




County Court Judge Ana Maria Pando has been formally notified by the Florida Supreme Court today, through notice to her attorney Robert Josefsberg, that the Investigative Panel of the Florida Judicial Qualifications Commission has determined that probable cause exists for formal proceedings to be "instituted against you to inquire into charges based on allegations that you violated, Canons 1, 2A, 3B(1), 3B(5), 3E(1) and 5G of the Code of Judicial Conduct."

Notably, they are considering her prior conduct:

In paragraph seven of the Notice of Formal Charges, it states that: "The Florida Supreme Court previously reprimanded you. In re Pando, 903 So. 2d 902 (Fla. 2005). In that case, you stipulated that you knowingly or recklessly accepted improper campaign contributions. The fact and the timing of the campaign contributions by Mr. Cereceda through his corporate entities, coupled with your actions on behalf of Mr. Cereceda, give the appearance of impropriety."

The Notice concludes by stating:

"These acts, if they occurred as alleged, would impair the confidence of the citizens of this State in the integrity of the judicial system and in you as a judge; would constitute a violation of the Preamble and Canons of the Code of Judicial Conduct; would constitute conduct unbecoming a member of the judiciary; would demonstrate your unfitness to hold the office of judge; and would warrant discipline, including, but not limited to, your removal from office and/or any other appropriate discipline recommended by the Florida Judicial Qualifications Commission."

The Notice of Formal Charges can be found here:


Judge Pando is running for re-election in Group 10 of the County Court. Soon after this matter became public she drew opposition from attorney Diana Elizabeth Gonzalez who has been a practicing attorney in Florida for less than eight years.

Now let the process take its course. Judge Pando has 20 days to respond.

In other news, the JNC announced today that they are accepting applications for those wishing to replace Judge Maxine Cohen Lando. Deadline is April 18th.

Captain Out .....

SUPREME COURT NEWS (more than you think)

Corporate Cash:

Does Apprendi apply to the judicial imposition of fines? Oral argument today at SCOTUS in Southern Union Company v. US.   While fines remain the first and usually only sanction a Judge can impose against a corporation (corporations  have special dietary needs that make incarceration difficult),  we predict that fines will become a more standard part of state court sentences for regular Joes and Mary Janes. Diminishing state budgets signal the high point in the incarceration frenzy that began in the mid 1980's. Because we can no longer afford to lock up more of our citizens that South Africa did during apartheid, or the Soviet Union did under Stalin, and because we realize that it just doesn't work, alternative sentences will now become more prevalent. 

Is that a $$$ that you just saw pop up over the head of your favourite robed reader? Lets see if the 
Supremes make it easier to buy your way out of a year and a day. 

Nobody wants to be the Fins QB. Not Peyton, not Matt Flynn, maybe not even Alex Smith who scampered over to Davie on Sunday because his agent told him to turn down 8 million per year for three years a week ago and now the 49ers are throwing 70-90 million at precious Peyton (whose agent, Tom Condon,  happens to be Smith's agent as well.). 

 When the music stops one team and one QB will be without a chair at the dance. That's your next Dolphins QB. Not a great way to run a team is it? 

Justice Thomas...
For President? 
ATL reports that idle chit chat continues that should the Republican Convention deadlock this summer in Tampa (although a good meal at Berns should help the GOP big wigs settle their disputes) Justice Clarence Thomas could emerge as a compromise candidate. 

Rumpole says: Never happen. 
You have to speak to run for president. 

Enjoy the week. 

Friday, March 16, 2012


UPDATE: As the Barrister points out in the comments, Herald Ace David Ovalle breaks the story of the SAO being unable to file felony charges against a Gulliver prep teacher who seduced and slept with two female students under the age of 18.  Misdemeanor battery charges were filed. 

NCAA Tourney...blah blah blah..  FSU's gonna make the final four, so is North Carolina, and Kentucky and some cinderella team from the last bracket.  Tell us something interesting. 

Here's something. Remember the Government's massive coverup during the prosecution of the late Senator Ted Stevens  (R. Curmudgeon, Alaska)? Remember how after the conviction the case fell apart when it was discovered that the government hid evidence including exculpatory statements from witnesses? 
The court appointed investigator into this fiaco released his report here. 

“The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness,” wrote Henry F. Schuelke, the investigator assigned to the case." 

But other than that Brady is alive and well in the federal courts, and other than that how was the play Mrs. Lincoln? 

Ray Martinez, who worked for 21 years for the City of Miami and for the last 11 years as the deputy chief of the Miami Beach Police Department is the new Chief of police for the Beach. Chief Mark Overton of the Hialeah  Police Department (Motto: "proudly beating up defendants for the last fifty years") was runner up and accepted the offer to become Deputy Chief of the Beach. 

Iteration #3 goes on sale today. Get in line early. In fact when you're in line, look for DOM who thinks the opening days of the NCAA are the most exciting sports days of the year. If you see him, you guys can fill out your brackets together. Have fun. 

Shark bites man (no lawyer involved).

Thursday, March 15, 2012


Who is it in the press that calls on me?
I hear a tongue shriller than all the music
Cry "Caesar!" Speak, Caesar is turn'd to hear.
Beware the ides of March.
What man is that?
A soothsayer bids you beware the ides of March.

Julius Caesar, Act 1, scene 2. 

DOM posted the link to watch HRH Roy Black in trial live in West Palm. The link is here. 
Fed prosecutors tuning in have been confused: they can't understand why a case agent is not sitting at the prosecutor's table.  "Prosecutors try cases by themselves in State Court? The next thing you know State courts won't punish defendants for testifying and losing." 

When we last left Attorney Ira Still III shortly after his motion for attorneys fees was argued in Broweird,  Judge Matthew "Money Ball" Destry  had awarded Mr. Still a total of $20,000.00 for two cases that he tried and won. Mr. Still was seeking about $110,000.00.
Still filed a petition for writ of certiorari and the 4th DCA granted it here; vacated the trial court's order, and remanded the case for proceedings consistent with paying Mr. Still more than $13.00 per hour. 

A Rumpolian "Well Done" Mr. Still. Well done indeed. 

We're back!

Tuesday, March 13, 2012


The Barrister notifies us of the Herald story on Homeless Sex Offenders:

Homeless Sex Offender camp returns, Not under Bridge but on NE 79 Street by thr RR tracks.

The Herald Story :
Miami sex-crime offenders camp on slab of sidewalk in Shorecrest.

Two years after dozens of sex offenders who’d lived under the Julia Tuttle Causeway were moved into apartments, offenders recently released from prison sleep on a Miami street. ..

State probation officials are aware of the sidewalk camp — in fact, the men there say their probation officers directed them to the corner after leaving prison. 

The Barrister 

Rumpole's stand in says: This is what we have come to: probation officers are directing released inmates to a STREET CORNER! What a great great legal system we have here in Florida. And aren't you just left in awe and wonder at the way our legislators and governor jump in right away to fix a problem like this? 


Monday, March 12, 2012


We're out of position which means you will not be reading the award winning, thought provoking, astonishing commentary you are used to reading on Monday mornings.

So until we get back, think about this: the NY Times reported Sunday that prisons are re-thinking and abandoning the "super-max" isolation style of punishment.

Don't immediately assume that the cruel and inhumane method of isolating people until they mentally snap was abandoned because of some late realization that people should just not do that to other people. No, the conversion from the super-max was monetarily driven. Some bean counter realized that it is cheaper not to isolate people like an ebola virus and suddenly governors and legislators of broke states were singing the song of rehabilitation faster than you can say "bleeding heart liberal".

But the real story is not how quickly the tough on crime crowd backed down in the face of dwindling budgets, but the startling realization that treating prisoners humanely actually worked better than brutalzing them in controlling the prisoners. Put another way, people respond better to humane treatment. And the further realization that prisoners treated humanely tend to act better when they're released is making strange bedfellows of the ACLU and a bunch of prison wardens.

See you in court real soon.

Wednesday, March 07, 2012


Judge Juan Ramirez announced his retirement from the 3rd DCA this week. His judicial career began as a circuit court county court Judge in our own REGJB. Bonus points if you recall the one term Governor who appointed him.

In our opinion Judge Ramirez hit his judicial stride while serving  on the 3rd DCA. Judge Ramirez recently  served a term as a Chief Judge of the 3rd and he ran a good ship. Judge Ramirez was a common sense but no nonsense jurist whose opinions were mostly concise and well reasoned. He was a good Judge and it is the judiciary's loss that he has accepted retirement for (our speculation only) greener pastures with an arbitration/mediation firm. We wish him the best. 

A RIDDLE: What do you call a county employee who worked one hour a week, but received full health insurance (costing $10,000.00 a year) while working "part time" the rest of the week for the federal courts for $100,000.00 a year? 
Judge Farina calls her "honey" or more formally, his wife. Judge Brown calls her a big headache because he approved the "sweetheart" deal and ace Herald Reporter David Ovalle has blown the lid off of this scandal here. 

It is sometimes difficult to remember that in our advanced society we do not always have all the answers. 
Currently the search is on for two great mysteries of the universe: The Higgs Boson, and a Judge that doesn't penalize your client for going to trial. 
The good news is that one search may be nearing an end. Unfortunately it won't mean more reasonable sentences for clients who lose a trial. 

But for unraveling the mysteries of the universe, the existence of the Higgs Boson may soon be a proven fact. 
Bosons are subatomic particles (like photons, gluons, and brady material provided by the feds.) 
Matter- the material of the universe- is made up of fundamental particles, whose behavior is predicted by the standard model of physics.  But for sometime physicists could not precisely explain why matter had mass. It was eventually theorized (for extremely complicated reasons) that the Higgs boson gives other particles mass. But for that to be proven, science must first prove the existence of the Higgs boson. 

Particle accelerators accelerate particles to almost the speed of light, creating collisions which in turn produce very small fireballs which fleetingly recreate energy conditions not seen around these parts since the first trillionths of a second after the universe was created (during which the very first lines to get into the REGJB were also formed).  The results of recreating these conditions cannot be directly observed, but can be inferred from data collected from the aftermath of the collision. Sifting through some of the very most recent data from particle accelerators, scientists have seen hints that the Higgs boson exists. 

But sadly, your client still gets slammed if s/he turns down a plea offer and goes to trial and loses. 

See you in court. 

Tuesday, March 06, 2012


We erroneously reported that Judge Pando was being 1) transferred to criminal AND 2) coming to the REGJB. 

Judge Pando has been transferred to the criminal division of......Hialeah!  She will not be returning MacArthur like to the REGJB.  We regret the error. 

You can take the Hialeah out of the Judge, but you can't take the Judge out of Hialeah. 

As of 7:11 pm upper Tuesday night, Newt has won Georgia, Romney leads in Vermont. 
7:20- Romney beats Paul in Virginia- they were the only two guys on the ballot. 


Did you know that a Leap Year that falls on a Sunday will ALWAYS have three Friday The 13ths in the year: one in January, one in April and one in July? 

Today is Super Tuesday. Are you psyched? 

Ace Herald Reporter David Ovalle outs the City of Miami Internal Affairs unit  in the Herald here for its abject failure to complete investigations within the legally prescribed time limit of 180 days. As a result, 50 (fifty!) separate investigations were ended without any punishment because the time for action expired. 

FREE BREAKFAST! For those of you intrepid souls who venture to the downtown Hyatt Regency on Thursday March 8 at 8:00 for an "Ethics Seminar" hosted by DOM featuring a gaggle of Federal Judges and Magistrates. 
DOM is big on the lecture circuit these days. Check it out on his blog. 

HEALTH UPDATE: We feel great. 

If you are a middle aged lawyer reading this blog, chances are your doctor has you taking a baby aspirin a day (bad idea. Increased risk of life threatening gastrointestinal bleeding and stroke) and a statin of some sort to lower your cholesterol. The statin is a worse idea.  The NY Times reports that after twenty years of studies, we now know statins increase your risk for type II Diabetes.  Statins also come with a whole host of side effects from impairing the function of your liver to cardiac arrhythmia to memory loss. "But Rumpole" you whine, my doctor says cholesterol is bad. Oh really? Try living without cholesterol.  You will last about six hours. Here's the rub: statins give you diabetes and it is your excessive consumption of simple carbohydrates that causes both diabetes and high levels of bad cholesterol. 

Try: eating nothing white (rice, flour, sugar, potatoes) and using Red Bean Yeast and Niacin (not the no-flush alternative) to lower your bad cholesterol. The combo should work as well as statins without the side effects.  

Note: We're not a doctor, but we play one on a blog. 

Monday, March 05, 2012


I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.
In Re: Winship, 397 U.S. 358, 327 (1970),  J. Harlan, concurring. 
The United States of America has the greatest legal system in the world, built upon the principle that it is so unjust to convict an innocent individual that it is better that some guilty people go free. 

Or that's what "They" want you to think.

Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person,” Justice Byron R. White,  Patterson v. New York, 432 U.S. 197 (1977)
The title of the post links to the NY Times article on post conviction relief and the sad case of  Edward Elmore. 

From half a lifetime spent in the criminal justice courts of this nation, here is what we have learned:

The system is far from perfect, as any system administered by humans would be. The difference however between say airline pilots, or heart surgeons and criminal defense attorneys is that the standards for becoming a criminal defense attorney, once a person has passed the Bar, are non-existent. 

Any lawyer can take a fee, wander over to the REGJB and blow the arraignment (we have seen this regularly, especially when things get tough in civil court.) There are currently standards in Florida for attorneys handling death penalty cases, and that's a good start. But any civil hack can file a NOA in a murder case where the state is not seeking death,  or a sexual assault case,  or a child exploitation case, and ruin the life of a client facing lifetimes of minimum mandatories. 

Currently the United States Attorneys Office is lobbying hard to change the rules for federal habeas cases- and not in a way that makes is easier for the innocent person convicted to get relief.  The state and federal courts are overwhelmed with mostly pro se petitions seeking relief, and no one wants to pay for the  staff necessary to provide adequate review of that never ending mountain of petitions. 

What keeps us up at night is that tucked away in that stack of frivolous 2254, 2255 and 3.850s on some Judge's desk is one motion, not in a death case-so no special attention is paid to it- in which some innocent man or woman is serving five or ten or twenty years or life in prison for a case they did not commit. 

Make no mistake that in this country's criminal justice system, it's not the result, but the process that matters. Were the rules followed? Was the accused afforded due process? Nice inquiries, but for the courts (and unfortunately for innocent clients) the inquiry ends there.

Because in the United States of America, despite what they tell you, innocence really doesn't matter. See, Patterson, v.  New York, supra. 

Well at least in a capital case it's different, right? It must be unconstitutional to execute an innocent person, correct? 

We may assume, for the sake of argument in deciding this case, that, in a capital case, a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.
We may assume, for the sake of argument in deciding this case, that, in a capital case, a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief... But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. 
Herrera v. Collins, 506 U.S. 390, 417 (1993) 

So there, in all it's naked shocking truth, you have it: we are a country that values procedure- "rules must be followed and orders obeyed" (and where, disturbingly, have we heard that before in the 20th century?) over justice. Actual innocence is no bar to being executed, as long as the rules were followed. Because preventing the execution of an innocent person is too "disruptive" to our precious system. 

See You In Court.  

We may assume, for the sake of argument in deciding this case, that, in a capital case, a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.

We may assume, for the sake of argument in deciding this case, that, in a capital case, a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.

We may assume, for the sake of argument in deciding this case, that, in a capital case, a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.