Friday, June 29, 2012


SUNDAY FOOTBALL UPDATE: Today at 2:30- Span/Italy for Euro2012. Predictions? 

UPDATE:  A rare Saturday update: The administrative order implementing the limited registry is out. Judge Brown issued it Friday at 3:55:42 PM EDST.  Whilst  you and your loved ones  are out frolicking during this semi-holiday weekend, a team of dedicated (not to mention unpaid) FACDL lawyers are parsing the order, legally poking it to find the its vulnerable underbelly. 
Our next post will discuss a Game Theory approach to defeating the limited registry. "Prisoner's Dilemma"  coming soon!

Your two new Circuit Court Judges are......
County Court Judge (and REGJB denizen) Cristina Miranda and
County Court Judge Rodney Smith.
Congratulations to both. One of these judges came very close to being elevated previously. In fact we know just how close, and we are sure the Judge has made the requisite "adjustments."

What is Rumpole Reading?
Many people want to know what we're reading as their summer vacations approach. We poured through Robert Caro's "The Passage of Power" (the must read of the summer) and now we've turned our attention to some old favourites.  There's something about Kazu Isihguro's third novel- Remains Of the Day, that just draws us back every summer or so. The genteel English Butler, adapting to a new american employer- so magnificently portrayed by Sir Anthony Hopkins in the movie-  is just the ticket for a lazy summer afternoon.  Of course to get our blood boiling for some upcoming trials,  we go back time and again to Henry V:
This story shall the good man teach his son,
And Crispin Crispian shall ne'er go by
From this day to the ending of the world,
But we in it shall be remembered,
We few, we happy few, we band of brothers.
For he today that sheds his blood with me
Shall be my brother; be he ne'er so vile,
This day shall gentle his condition.
And gentlemen in England now abed
Shall think themselves accursed they were not here,
And hold their manhoods cheap whiles any speaks
That fought with us upon  Saint Crispin's Day. 

Roy Black fancies himself a connoisseur of fine literature. He recommends aspiring attorneys plow through Ulysses. We took him to task on his blog and he responded. The "tete'-a-tete'" was of course conducted in gentlemanly discourse. 
Mr. Black currently finds himself enthralled with the fiction of Deon Meyer and his latest thriller- Trackers.  Mr. Meyer is a resident of one of the former African colonies. We  have yet to try Mr. Meyer's tome, but one could get a worse recommendation about a book than from Mr. Black (although not Ulysses. A monumental waste of time.) 

Enjoy your fourth of July weekend. Yankee doodle dandy and all that for you members of the former colonies. 


Some emails have said we  treated Judge Hirsch too roughly yesterday; that Judge Hirsch had the courage to tackle a very unfair law and did so with the best of his ability and that he should receive kudos for his courage to issue what could be considered among the public as a very unpopular ruling. 

So there you have the other side of this coin. Does Rumpole owe Judge Hirsch an apology? We think not, although we do agree Judge Hirsch should be lauded for the intellectual honesty and courage to grant a very difficult motion. There is no doubt Judge Hirsch ruled the way he ruled for no other reason than he thought it was the right thing to do. That is always the final arbiter of a great Judge and in that regard Judge Hirsch gets very high marks regardless of what Judge Rothenberg had to say. 

In our view Chief Justice Roberts voted to uphold the health care law for two reasons: first-if it was going to be 5-4 then Roberts felt an obligation to uphold the law and turned to Justice Holmes, whom he quoted in the opinion, for support: "As between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid our plain duty is to adopt that which will save the act.”
Second: no matter the result, Roberts had bigger fish to fry than health care: the commerce clause. This case gave the Roberts' court a clear shot at knocking the commerce clause back down from the "super- clause"  status that was in the past used to desegregate Ollie's barb-be-que (See, Katzenback v. McClung, 379 U.S 294 (1964) in which the court used the commerce clause to outlaw segregated restaurants) and was used to force private businesses to abide by the 1964 Civil Rights Bill (See, Heart of Atlanta Motel v. U.S.,  379 U.S. 241 (1964).)  As true conservatives have  said for years, if the court could use the commerce clause to forbid a farmer from eating the wheat he grew (See, Wickard v. Filburn, 317 U.S. 111 (1942) ) what couldn't the court do?  The proper result in the civil rights cases never fully erased the court's use of the commerce clause to eviscerate private property rights. True conservatives believe that while racism is abhorrent, private property rights are the foundation of all other rights and thus should trump an ignorant racist's desire to run a segregated business.

 Roberts went out of his way to stop "his fellow liberals"  (especially Ginsburg) in their tracks and prevent them from re-invorigating the commerce clause by using the clause to justify  congress's power to force all americans to buy health insurance. Roberts cast the deciding fifth vote, but he did it on the basis of the power to tax, not regulate commerce. For Roberts the decision became a win-win situation. He achieved a political end (stopping a 5-4 reversal) and struck a blow for the cause of real  conservatism by knocking the commerce clause down a peg or two. 

Note a few changes in the CJ's announced summer schedule: He will NOT be attending a fourth of July Picnic at the Ronald Reagan library. Instead he will be attending a private fourth of July celebration with the Obamas at Camp David. He will not be driving with Justice Thomas in his camper across the country this summer- he will be attending summer teas with Ginsberg and Kagan and Breyer. 

Not to digress, but there was a brief bit of conversation in the comments section about the best coffee in town.  We have in the past moderated very fruitful discussions of important topics like the best bar-be-que. So lets have it- Starbucks (cheap swill) excluded- who has the best cup of Joe? 
What are the best beans and where can you find them? Our vote: Peaberry coffee. A Peaberry bean is a bean that occurs in only 5% of coffee beans. Most coffee beans occur two to the coffee cherry bean. However a peaberry is produced when the cherry produces only one bean- almost always smaller than a regular coffee bean. 

What is the best way to brew the best beans? French press? Percolator? Mr. Coffee? 

The Marlins have a home stand this weekend. Do yourself a favor and go see a game. 
Enjoy the weekend.

Thursday, June 28, 2012


893.13. A judicial love story. Or -"Possession means less than you think it does."

In a lengthy, Shakespeare and Twain riddled opinion, Judge Milt Hirsch declared to the delight of defense attorneys everywhere that Florida’s drug possession statute- 893.13 was unconstitutional under the Due Process clause of the 14th amendment (this will become important shortly) because the statute does not make knowledge of the illicit nature an element of the offense. Lack of knowledge in the Sunshine State is relegated by the statute to the ash heap of affirmative defenses, like venue or entrapment. 

The prosecution argued that this issue had been settled in Taylor v. State, 929 So.2d 665 (Fla. 3rd DCA 2006) rev. den. by the Florida Supreme Court  952 So.2d 1191 (Fla. 2007) (“tough cookies. Cert. Denied.” Id. ). 

“But would not due process by any other name smell as sweet?” inquired Judge Hirsch, citing to Shelton v. DOC,  802 F. Supp. 2d.  1289 (M.D. Fla. 2011), which found that the statute violated federal due process guarantees. 
So off to the Third DCA went the case with several dozen other defendants piling on.  Judge Rothenberg drew the assignment to write the opinion: 
"The record, however, reflects that the trial judge’s assumption was incorrect, and counsel for the defendants concedes on appeal that the only federal court whose decisions bind state courts is the United States Supreme Court. See State v. Dwyer, 332 So. 2d 333, 335 (Fla. 1976) (“A decision of a Federal District Court, while persuasive if well reasoned, is not by any means binding on the courts of the state.)”
When you’re a trial judge with an order on appeal, it helps to have talented and aggressive counsel fighting for your decision. Pity Judge Hirsch. Under a subheading “Trial court’s failure to follow the law” Judge Rothenberg leads with this gem: “Counsel for the defendants candidly concedes on appeal that the trial court’s presumptions, analysis, and conclusions were completely erroneous, but he agrees with the result.”  Ouch. 
And:  “The result, however, was a dismissal of the charges based on the defendants’ facial constitutional challenge despite binding precedent from this Court and other district courts of appeal. That result can never be 'the correct result.' The correct result would have been to deny the motions to dismiss on the authority of Taylor. The trial court was then free to express its disagreement with Taylor and to request reconsideration of the holding in Taylor en banc. While a lower court is free to disagree and to express its disagreement with an appellate court ruling, it is duty-bound to follow it.” Double ouch. 
But Judge Rothenberg was not done. She has a black belt. She went to Israel to help during the Gulf War. Saddam's Scuds didn't scare her so  she sure ain’t a scared of no federal judge,  as this subheading to her opinion demonstrates: “The trial court relied on a flawed federal trial court order."
Remember, up to this point Judge R has already got the Appellees to admit that the trial court erred in following a non-supreme court federal decision. But that wasn’t enough for her. She wanted to drive a stake through the vampire heart of her federal court colleague’s decision. No rising from the dead for Shelton, to wander the courts of Florida, randomly obtaining dismissals of drug possession cases.  
Shelton said 893.13 created a strict liability crime. Judge Rothenberg said  “nyet!”:  “Section 893.13 does not create strict liability crimes because, although scienter, or “mens rea,” is not an element of these offenses, the statute provides that the defendant’s lack of knowledge may be raised as an affirmative defense.”
There’s more to the analysis of the (flawed?) federal due process analysis, and we have the opinion below for you to peruse. But the opinion’s conclusion makes it crystal clear- without resort to quotes from Twain, Shakespeare, Paradise Lost, or Harold and Kumar go to White Castle- what the trial court should have done:
“The trial court was therefore duty-bound to follow binding precedent, not ignore it.
Triple ouch. 



BREAKING: From the Scotus blog- live blogging the health care opinion. Individual mandate survives as a tax! Roberts veers to the left on this one. Almost entire law upheld 5-4. Some individual medicaid provisions limited but not thrown out. 
 Scalia said to have thrown a pizza cutter at Roberts in disgust. More soon. 
Roberts: "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions."

From Scotus live blogging: 
Amy Howe: 
The Court holds that the mandate violates the Commerce Clause, but that doesn't matter b/c there are five votes for the mandate to be constitutional under the taxing power.

Amy Howe: 
In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.

Essentially, a majority of the Court has accepted the Administration's backup argument that, as Roberts put it, "the mandate can be regarded as establishing a condition -- not owning health insurance -- that triggers a tax -- the required payment to IRS." Actually, this was the Administration's second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.

UPDATE: The Supreme Court will be issuing the opinion on the health care law Thursday. We're not saying we've seen an advance copy, but we are saying the Roberts authored opinion is a doozy. 
Check back often today and when the opinion is out, we will give you all the info you need to sound intelligent at happy hour tonight. 
Speaking of opinions, coming tomorrow: Leslie and Milt- a love story. 

You must email your pleadings, no, ifs and, or "AOLs" about it. 
Hat Tip to the honorable Judge Juan Ramirez's  (Ret) blog here, which you should check out every few days for appellate law updates (and gentle jibes at Judge Rothenberg). 

In Re: Amendments to the Florida Rules of Judicial Administration, --- So. 3d --- (Fla. June 21, 2012) adopted Florida Rule of Judicial Administration 2.516 (Service of Pleadings and Papers) to provide that all documents required or permitted to be served on another party must be served by e-mail. Under subdivision (b)(1) (Service by Electronic Mail (―e-mail), upon appearing in a proceeding a lawyer must designate a primary e-mail address, and may designate up to two secondary e-mail addresses, for receiving service. Thereafter, service on the lawyer must be made by e-mail. The rule does permit several limited exceptions to this requirement. A lawyer may file a motion to be excused from e-mail service, demonstrating that he or she [is living in the stone age and] has no e-mail account and lacks access to the Internet at the lawyer’s office. Similarly, individuals who are not represented by an attorney may designate an e-mail address for service if they wish; however, pro se litigants are not required to use e-mail service.

The Opinion is here. 
Civil lawyers must email by September 1,  the criminal bar has until October 1 ( a reader says the date is 10/1/2013?? Either way, no time like the present to start the ol' Zeos 286 microprocessor and start sending emails)  to fire up their laptops and PDF files. 

Need an email account for free? Gmail works great. Sign up here. 


It tolls for those trial lawyers who look like Papa Hemingway:

Order Denying Louderback Time Off

Tuesday, June 26, 2012


"PRESSURE (presh-er) The exertion of force upon a surface or item by an object in contact with it."
When Lyndon Johnson unexpectedly became the 36th president of the United States, he was faced on November 23, 1963 with multiple challenges. To reassure a nation, project confidence and calm, and start the logjam-stalled process of getting President Kennedy's bills passed- none of which a recalcitrant congress had deigned to do during 1963. In the space of 8-10 weeks, facing unrelenting pressure, Johnson lowered the budget 5 billion dollars, reduced the total number of federal employees, got an unpopular tax cut bill passed (ironically, in 1963 it was Democrats fighting for a tax cut to stimulate the economy while  being fought by conservative republicans who wanted higher taxes and no deficits) and got the most comprehensive civil rights bill passed in the face of southern democratic senate  opposition that had prevented such bills even coming up for votes in over fifty years. Viewed by liberal northerners as a fake liberal, and conservative southerners as a turncoat traitor to the south, Johnson had pressure everywhere he turned. And there was also that troubling issue with a small country called Vietnam. 

Joel Brown, the 4th administrative judge of the 11th Judicial Circuit (in our memory- Wetherington, Rivkind, Farina, and Brown) is facing pressures of his own to implement the new Limited Registry Act (LRA). The LRA a/k/a "the cheap two bit lawyers act")  provides for minimum wage level payments for court appointed attorneys (for example, $2,000 for a non-death penalty first degree murder case. Assume  200 hours prep time over two years and 25 hours in trial time, and five hours in post trial work, motions, sentencing,  yields  2000/230= $8.70 per hour). The law requires the administrative judge of each circuit to issue administrative orders implementing the act. 

On one  side Judge Brown has the Florida Legislature, backed up presumably, by public opinion firmly opposed to spending tax- payer dollars on criminals and their sleazy lawyers. On the other side is the criminal defense bar, warily watching the Judge, ready to pounce (presumably) with objections, motions, requests for hearing, lawsuits, appeals, mud wrestling challenges- basically all the tools in a trial lawyer's tool box/belt. 

Pressure cannot build forever. Even continental shelfs rubbing against each other in unrelenting slow motion for hundreds of years  (check out DOM's post on self pleasuring here) eventually release their pressure in the form of earth quakes.  When that happens nuclear power stations melt down and spill radioactive waste into the sea contaminating the seafood of the world's largest seafood consumer- just to mention one bad outcome of pressure. 

The rumor mill of the REGJB says that Judge Brown will release his administrative order and unleash fee armageddon this Friday.  Judge Brown for his part is as willing to speak with us on this issue as President Obama is willing to buy Justice Scalia a beer and chat  about his dissent in Arizona v. U.S (which you should really read.) 

Will Brown melt down? Will REGB lawyers be reduced to panhandling for scraps of fees- working for  an hourly rate less than the hotdog vendor on the corner or the janitorial staff that make our courtrooms so sparkling clean? 

What can Brown do for you? 
We shall see. 


Fast on the heels of Mondays monumental traffic jams caused by the rain and "you know who",
the commander in chief, Barak Obama will be here Tuesday afternoon, just in time for rush hour. 

One is the loneliest number:
DOM has the close up details of why Onan would have been much better off being represented by the Federal Public Defender's Office of the Southern District and having his case decided by the 11th Circuit instead of a biblical injunction against...certain deeds better off done alone in the privacy of your home, but legally accomplished nonetheless in a waiting room of a VA hospital with an attractive veteran nearby. Confused? Click here. 

Citizens dis-united: 
The U.S. Supreme court is might satisfied with the political landscape the$e day$ with billionaire$ able to drop tens of millions of dollars into campaigns with no oversight and no disclosure.  The court made that abundantly clear in its per curiam (latin for "you didn't just lose, you got creamed") decision in American Tradition v. Bullock in which the court said the holding in Citizens United  applies to Montana (and presumably the other 49 states). The dissent by Breyer is interesting.  with Sotomayor, Kagan, and Ginsburg joining (that's a 5-4 per curium affirmed for those of you keeping score at home). 

As Justice Stevens explained, “technically in­dependent expenditures can be corrupting in much the same way as direct contributions.”...
Moreover, even if I were to accept Citizens United, this Court’s legal conclusion should not bar the Montana Su­preme Court’s finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana. Thus, Montana’s experience, like considerable ex­perience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.

So money doesn't corrupt politics. Duh!

It's Torture: 
For those of you firmly in the "Scalia is really a friend to the criminal defense bar camp" note that he had no trouble concurring with Justice Thomas's view of the eighth amendment  in his dissent in Miller v. Albama:
As I have previously explained, “the Cruel and Unusual Punish- ments Clause was originally understood as prohibiting torturous methods of punishment—specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted. The clause does not contain a “proportionality principle...  
In short, it does not authorize courts to invalidate any punishment they deem disproportionate to the severity of the crime or to a particular class of offenders. Instead, the clause “leaves the unavoidably moral question of who ‘deserves’ a particular nonprohibited method of punishment to the judgment of the legislatures that authorize the penalty...

Lets us interpret the Thomas dissent for you:
The eighth amendment cruel and unusual prohibition applies to the manner of punishment, not the length. Torture is prohibited. Getting fifty years for stealing a candy bar is not, so long as a bunch of yahoo legislators approve such a law. 

A friend in need, is a friend indeed. 

See You in court.  

Monday, June 25, 2012


UPDATE: Supreme Court rules life sentences without parole for juveniles are unconstituional. Miller v. Alabama.

If you're not reading Robert Caro's  The Passage Of Power, you're  missing out on the remarkable story of Lyndon Johnson's humiliating years as Vice President and the even more remarkable way he took control of the county within hours of becoming president. It is a breathtaking story full of pathos and containing more intrigue and twists and turns than any fictional story writer could invent. 

With the Miami Heat generating intense discussion, we turn to a less emotional subject: 
The Dream Act:
Marco came to the United States  with his mother when he was 18 months old.  His father had been killed before he was born. With relatives in the United States promising her a steady job and the chance of a better life for her son, Marco's mother entered the United States illegally. That was seventeen years ago. Today Marco has graduated high school as the valedictorian. His scores on math and science exams established him as one of the brightest prodigies in the United States. Schools like Stanford and MIT are interested. During the past seventeen years Marco's mother has lived a law abiding life, working for a cleaning service and having her payroll taxes deducted. 

What is to become of Marco, an illegal immigrant? 
Should he self deport as Mitt Romney wants?
Should he  be held responsible for the acts his mother did on his behalf when he was an infant?
Should he benefit from his Mother's crime? 
Should the United States extend citizenship because of his intellectual promise? 

The Dream Act (Development, Relief, and Education for Alien Minors) first proposed in 2001 by senators Hatch (R, Utah) and Durbin( D, Illinois) provides a path to permanent residency for certain aliens, who came to this country as minors, lived here continuously and in a law abiding manner, and who then complete two years of military service or two years of college. 

The bill in various forms has been re-introduced every year since 2006. 
On June 15, 2012 President Obama signed an executive order ending the deportation of illegal aliens who meet the conditions for permanent residence under the Dream Act. 
Fair? Foul? A usurpation of legislative power by the chief executive? 
Is this still a country of immigrants or is immigration at unsupportable levels one of the serious drains on our economy? Discuss. 

Sunday, June 24, 2012



..... Quiet. Rumpole's on a roll.


JANE HORACE YOU IGNORANT SLUT. http://www.hulu.com/watch/2306

When I first emailed Rumpole the other day, it was because he had removed my post on the HEAT victory Thursday evening. But, after he told me why he removed it, I challenged him to a Point. Counterpoint. After reading the comments section from the past three days, I think the readers have done a much better job than I ever could have done.

For most of the readers, this one included, we could care less what Ann Rand* would have written about Lebron James and his "decision" to take his talents to South Beach rather than stay in the "marble pits" of Cleveland with Mo Williams, J.J. Hickson, Anthony Parker, Anderson Varejao, and a 37 year old Shaq (his teammate starters in his final year with the Cavs).

It seems that the tenor of this debate has changed somewhat. What I thought this debate was supposed to be about was this:

POINT:"The Heat couldn't win a championship last year. They won't win one this year and they will implode next year, all because they are not a team and cannot handle adversity. Watch."

OKC drops four straight.  HEAT wins NBA Championship.

POINT:"As to the Heat- this goes with what I have been saying all along. This is not a team. This is three spoiled stars who are now down to two stars and look what happens- they can't win. Can't make a free throw. Can't make a layup. A good team will beat these spoiled brats any day of the week in a seven game series. "

Shane Battier, Mario Chalmers, Mike Miller, Udonis Haslem, Norris Cole, Joel Anthony.

POINT:"The Heat are down 2-1 against the Pacers. Game 4 is in Indiana. Miami Superstar Dwayne Wade was 2-13 and scored 5 points in the Heat's latest shellacking. Let us take a moment to analyze this series....seriously...... HAHAHAHAHAHAHAHAHAHAHAHA! What a bunch of spoiled babies. One player gets hurt and the whole team collapses. HAHAHAHAHAHAHAHAHAHA!"

LBJ 40-18-9 and DWADE 41-10-3.

"Rumpole predicts: Celtics in six. "

HEAT in seven.

POINT:"I have extremely limited knowledge of basketball. My knowledge about strategy stopped sometime around the same time Dean Smith's four corners offense was outlawed with the college shot clock.
Put another way- I have as much knowledge about basketball as I do about case law. But what I do know is people. It's how I win cases. And it's why I am supremely confident that a well coached team will always beat a bunch of whiny prima donnas (the New England cheaters not withstanding.) "

Where do I begin.  You were right (see first red highlights).  Scott Brooks: NBA Coach of the Year in 2010; in just four years has taken his team to the NBA Finals, losing last year in the Conference Final to eventual champion Mavs.

POINT:"I am not an expert in Basketball. However, I stick to this proposition- good coaching and team work will beat a team of stars that do not play well together"

Right again.  Erik Spoelstra and his nine (James, Wade, Bosh, Battier, Chalmers, Miller, Cole, Haslem, Anthony) beat KD, Westbrook and Harden.  And they beat Garnett, Allen, Pierce and Rondo.

POINT:"For those of you who kept asking us what we say now about the Heat? Here now is our answer:
We think they're a bunch of losers with no heart. What do we think of the Heat? Give us a well coached team manned by players with heart and guts any day over this band of spoiled prima donnas."

See below.  We think the HEAT have a lot of heart and guts and they showed it best in their times of adversity.

POINT:"I think the Heat are in trouble. They are not a team. They are two stars, a third almost star and a poor supporting cast. A good team well coached will wipe the floor with them."

"I still don't think the Heat has what it takes"


In case you have not been reading this Blog over the past fourteen months, all of the quotes above are from the man himself, Rumpole.

I think I'll end this with a quote from one of Rumpole's favourite leaders in British history. And the quote speaks volumes when you consider that most of America wrote the HEAT off at least three times during these playoffs; including most of the sportswriters and sports broadcasters; Skip Bayless, Steven A Smith, John Barry, Tim Legler, Stuart Scott, Chris Mullen, Michael Wilbon, just to name a few.

They wrote the HEAT off when the Pacers were up 2-1 in Round Two. What did the HEAT do: only win the next three games in a row, all without Chris Bosh in the lineup. And in the pivotal Game Four, Lebron James put up 40, 18 and 9.

They wrote the HEAT off again when the Celtics were up 3-2 in Round Three. What did the HEAT do: only win the next two games and take the series 4-3. And in the pivotal Game Six, Lebron James put up 45, 15, and 5.

They wrote the HEAT off again when the Thunder were up 1-0 in Round Four. What did the HEAT do: only win the next four games in a row and take the Championship series 4-1. And in the pivotal Game Two, Lebron James put up 32, 8, and 5.

For the Finals, LBJ averaged 28.6 points, 10.2 rebounds, and 7.4 assists in the five games. His closeout game was a resounding triple-double.

In the words of the late, great Winston Churchill:

Winston Churchill, October 29, 1941, Harrow School, U.K.


And in response to the words of the great, but fortunately for us all, not late, Horace Rumpole, when he said on Tuesday, May 1, 2012, at the beginning of these playoffs: "The Heat couldn't win a championship last year - they won't win one this year". We say:




Friday, June 22, 2012


UPDATE: Coming soon: The captain rises to the defense of the Heat. 

No one will ever mistake the 2012 Miami Heat with the 1969 Mets, or the 1972 Dolphins, or the 1980 US Olympic Hockey Team. No, the Heat have all the emotional impact of a black stretch limo pulling up to a G4 at a private airport.

When Michael Jordan spent all those years falling just short in the playoffs, he didn’t demand a trade to play with Magic Johnson. When the Larry Bird led Celtics beat the Lakers, Magic didn’t play out his contract and sign with Boston.

When Ali walked into the ring in Kinshasa, Zaire against George Foreman- the George Forman who had arms the size of most men’s legs and the George Forman who in 1973 knocked Joe Frazier to the canvas five times in less than two rounds; the George Foreman who faced Ali with a record of 38-0, 35 by knockout- Ali didn’t demand that Ken Norton help him in the ring.

In the 1980 Olympics it was a bunch of college kids, mostly from Minnesota or Boston University, that faced the Russians- the greatest hockey players of their generation, and won.

Name the starting lineup of the 72 Dolphins. Their quarterback Bob Griese will never be remembered as the premier quarterback of his era. The 72 Dolphins achieved perfection because their coached molded an entire team. When Griese went down in the fifth game of the season, 38 year old journeyman Earl Morrall, claimed before the season by Coach Shula off of waivers for $100.00, stepped in and guided the team to wins through the rest of the season and the first playoff game.

Americans love an underdog. Namath beating the mighty Colts in 69. The miracle Mets of the same year. Sea Biscuit was an undersized, knobby kneed horse who was raced 35 times as a two year old before being claimed for $2,500.00. The horse went on to win the match of the century against Man of War and then recovering from a seemingly career ending injury, went on to win the Santa Anita Derby after having lost it twice before.

No one will ever look at the 2012 Miami Heat and think of Ali on the ropes doing the unthinkable and unbelievable. No one will remember the Heat the way they think of the 69 Mets or the 1980 US Hockey team. There are no Earl Morralls on this team of high priced superstars. There are no athletes on this team with the heart of Sea Biscuit. No member of the Miami Heat ever looked deep inside of himself and found a way to will his team to victory like Michael Jordan did or Magic Johnson did when he took over center for the Lakers in game six of the championship series. With hall of famer Kareem Abdul-Jabbar on the bench, Magic scored 42 points as the center and beat the Dr. J led 76’ers for the title.

Sure Lebron James is a good player. He has great talent. But he doesn’t have heart. When he couldn’t win in Cleveland he left. Magic never left LA; Larry Bird never left Boston. Mike Eruzione and Jim Craig never let their hockey team give up and Tom Seaver and Cleon Jones and Tommy Agee always believed that their Mets- the joke of the league during the 1960’s- could win it all.

The Heat victory is a victory for corporate America. With limos and luxury suites and seats that costs more than most people make in a month, they are the best team money can buy. The Heat and their fans will never know what it is like to take the field of play being an underdog – being given no chance- being written off by everyone but themselves. Ali reached deep down inside of himself and found the courage and heart of a champion; Lebron James skipped town when he couldn't  win with the Cavaliers.

The Heat are the champions; we give them their due. Go celebrate their victory if you want to. You can have them and all that they stand for.

Wednesday, June 20, 2012


Having battled back from the brink of elimination,  your Miami Heat now stand at the brink of an NBA Championship, their first in the Lebron era that was ushered in with confident assurances that multiple championships were not just likely, but inevitable. 

We shall see. 

DOM has a nice piece on the 11th Circuit's dismissal of Giglio issues in a Florida Death Penalty case
 ( Trepal v. DOC)

As June winds to a close Supreme Court Justices become increasingly edgy to start their summer vacations. Thus the speculation on the imminent decision in the Affordable Health Care case has become rampant. 
Closer to home, defense attorneys are waiting breathlessly for Judge Brown to release his administrative order implanting Florida's Affordable Court Appointed Attorney Act (Motto: "Cheaper is better."). Rumors that the FACDL among others will strike hard and quick at the law and the administrative order are- thankfully- true. 

Wednesday is the first day of summer, so naturally it's raining in South Florida. 

The law suit of all lawsuits has been filed alleging that Hebrew National hot dogs are NOT kosher. As the South Florida Lawyers blogger would say: Oy!. 

Longtime and careful readers remember that we've always been partial to Chicago style dogs. 

See You In Court. 

Tuesday, June 19, 2012


It's that time of the year again.
We received this email:
 The League of Prosecutors will be honoring a current prosecutor with the Prosecutor of the Year Award at its annual Justice Awards Dinner on Saturday, September 22, 2012 at 7:00 p.m. at Jungle Island.  The League of  Prosecutors is currently accepting nominations for the award.  The award is given to a current prosecutor who has demonstrated dedication to the profession, integrity, professionalism, initiative, responsibility, and has
 a positive attitude.  Only current members of the League of Prosecutors may make a nomination.

 Please submit nominations with a detailed explanation as to why the nominee should be honored with the Prosecutor of the Year Award to Barnaby L. Min at 
 bmin at miamigov.com  by August 1, 2012.For further information on the League of Prosecutors, the Justice Awards Dinner, or the Prosecutor of the Year Award, please visit our website at league of prosecutors.

Speaking of prosecutors, the Broward SAO, whose policies are firmly rooted in the 19th century (or early twentieth century Soviet Russia, or twenty first century North Korea) has joined the 21st century by allowing attorneys to enroll in an electronic document service: 
Attorney Information Update Form

Now you can get your five year state prison plea offers for possession for first time offenders (make that black first time offenders) by email. Progress marches on. 

And speaking of Broweird, their State Attorney will be debating the other two candidates for State Attorney. The details are below:


Will somebody please ask Satz about his policy of prosecuting innocent people? If we had a dollar for how many times we've had a prosecutor in Broward tell us that their supervisor said to let the jury acquit the defendant, we would have more than enough money to buy a few dozen hours of air time for Satz's opponents. 

See You In Court. 

Monday, June 18, 2012


BREAKING: THE ROCKET IS FOUND NOT GUILTY. Roger Clemens  was found not guilty of al charges in his federal trial where he was charged with perjury related to the steroids investigation. A great win for Houston trial lawyer Rusty Hardin, who battled it seemed at times both the government and the judge in the case. The rocket can still bring the heat and the government was sent back to the dugout  after a swing and a miss. 

The CJA lawyers are back from their federal retreat over the weekend. It was said to be a great success.

Rodney King of LA riots fame has passed away at age 47. The NY Times has coverage here. 

The New Democracy party won enough seats in parliament in Greece Sunday to form a coalition government. The party is in favor of a bailout and keeping Greece in the EU. The election should calm jittery markets. For now.

In NYC in 2011 the police conducted over 700.000 stops and more than 350,000 frisks and more than  600,000 of those people were  black or latino. On Sunday Jews, Gentiles and Muslims, black people, white people, hispanics and asians - almost 10,000 in total- marched down Fifth Avenue to protest the loss of the 4th Amendment in the Big Apple.

Your  Miami Heat won game three in their championship series with the Oklahoma Thunder Sunday night to go up 2-1 in the seven game series. Game three is a strategic game. In the history of the NBA Championship series, under the current format the team who wins game three has gone on to win the series 11 of 12 times. That one exception? The chumps who blew the series last year. What team was that again that watched the Mavs celebrate a championship while moping  on their home court? 

It's the start of another hot and muggy week in the magic city and its favourite courthouse. 

See you in court. 

Friday, June 15, 2012


What we're waiting for: The Supreme Court's decisions in Miller v. Alabama  and Jackson v. Hobbs 

Issue: Whether a sentence of life without parole for someone who was convicted of murder when he was fourteen violates the Constitution’s prohibition on cruel and unusual punishment.

What we're eating: Australian, Wagyu, grass fed beef. 

What we're reading: The Godfather of Poker: The Doyle Brunson Story:  Even if you don't the difference between an inside straight and a full house, the amazing life story of a True American original will keep you fascinated and laughing. Mr. Brunson was at various times: one of the top two or three high school milers in the US; a probable first round pick of the NBA Minnesota Lakers; given three months to live before the age of thirty; robbed ("hijacked" in his parlance) more times than you can shake a stick at; playing and betting golf with over a million dollars a round at stake; and of course perhaps the best poker player in the world. 

What we're hoping for: no rain this weekend and a competitive US Open. 

What we're worried about: The after effects of the Greek vote this Sunday and the European Union. 

What we're going to do about it: hopefully lie by the pool (see "what we're hoping for" above.) 

What we watched Friday night: Nik Wallenda walking across Niagara Falls.  The video is here. 

Enjoy your weekend.  

Wednesday, June 13, 2012


UPDATE: More Mr. Markus. John Pacenti's rant about the prosecutorial misconduct in USA v. Dr. Shaygan. Check it out here. 
The courthouse was all a-twitter about the tweeting of film maker nee juror Billy Corben, who found the courthouse food and wi-fi not up to Hollywood standards 
Note to BC: try the salmon carpaccio with the leek salad and Oregon Chardonnay which 
is served on Thursdays only. Until then....spare us your
While not social-media savvy, Corben can pick his lawyer when he needs one, and he made the right call by hiring  everyone's favourite federal blogger. The rule to show cause was dismissed today. 
The Herald's coverage is here. 
Mr. Markus was so impressed with Judge Joe Fernandez that he was moved to ("tweet") say this:
"If we were allowed to friend judges on Facebook, Judge Fernandez would be the first one.”

Rumpole notes: we don't "friend" but we do Tweet. 

Tuesday, June 12, 2012


UPDATE: ABA Journal blaws links to our humble blog here.
Tomorrow: Hoolgian Penguins- not even the threat of minimum mandatories slow these artic toughs down.

SDOFB (DOM's Blog) has all the details on the investiture of Judge Adalberto Jordan's investiture as a United States Circuit Court Judge. 

We digress a moment to ponder...what if George Herbert Walker Bush (who turned 88 Tuesday) was elected to a second term? Then the pending nomination of Federico Moreno to the 11th Circuit would most certainly have been acted on and Judge Moreno would have been a Circuit Court Judge in 1992. Would he have been the first Hispanic Judge on the US Supreme Court when Bush 43 took office? 
"Of all the words of song and pen, the saddest are these: it might have been." 

Mr. 8-5 (not "eighty five, but "eight" "five") is now a Miami Dolphin. Whoopee. 
You don't see the Giants or the Steelers or the Ravens signing aging players who are more bark than bite. All those teams do is consistently win, year in, year out. 

We knew no good would come out of the George Zimmerman case. Now there are hearings examining the immunity/stand your ground law. The police and prosecutors are using this opportunity to bemoan the fact that they are now actually losing (sob, gasp) cases because of the law. Interesting to note that the good ol' boy-Republican law and order types are now being pressed into conflict with the good ol'boy- Republican second amendment "you'll have to pry my gun out of my cold dead hands" types. And in many cases they're one in the same!  Politics makes strange bedfellows, especially when you're sleeping with yourself. 

File those immunity motions before the pendulum swings back the other way. 

See you in court. 

Monday, June 11, 2012


"Treat failure as a teacher, not an undertaker." 
Spain rescues its banks;
Greece fiddles while Athens sinks under a mountain of debt; 
If you do not have plans on how to proceed if or when Greece sinks the European Union, then you only have yourself to blame. 

When will Joel Brown be implementing 1960? It's a fairly apt title for a bill, since it returns Florida to indigent criminal defense circa 1960 in terms of attorney pay and indigent representation. 
Giddeon shmiddeon!

The question has arisen as to whether the blog should print the names of attorneys who sign the limited registry? The issue is that the majority of attorneys opposed to the limited registry believe those attorneys who do sign are undermining the profession, are selling out, are the Bar's equivalent of scabs. 

We are 100% opposed to the limited registry. How can any attorney provided adequate representation in a murder case for $2,000.00?
That being said, being the sole owner and operator of a blog so popular and widely read (not to say admired) brings with it a set of responsibilities we never imagined. Using the blog to attack an attorney's legal/business decision, no matter how wrong in our opinion, does not sit well with us.* What are your thoughts? 

Sugar-sweetened drinks accounted for at least 20 percent of the increases in weight in the United States between 1977 and 2007, according to one study cited by the institute [of medicine]."

See You In Court. 

*This decision is limited to the special set of facts of this case, and this case only, and does not carry any precedential value whatsoever regarding those who wear black robes while at work.