Tuesday, July 31, 2012


COMING THURSDAY: It was 1962. Kennedy was President. Castro was settling in in Havana and Miami had a brand spanking new courthouse no one wanted to work in. 

If you're under 40- go away. Go tweet or Facebook or get a latte at starbucks. This isn't for you. 
Today's post is very simple. Who's the best Judge you've ever appeared in front of?
State. Federal. Circuit. County. Have at it. 

Our thoughts: Any discussion involving the best at the REGJB usually starts and ends with the late Judge Cowart. A very smart man. Great judicial temperament. A true southern gentleman. Usually responded to most inane objections with "bless your soul", but when he needed to apply his razor sharp legal mind, his reasoning was spot on. Is remembered for telling Ted Bundy when he sentenced him to death that in another circumstance he wished Bundy would have been a lawyer appearing before him "but you chose another path pardner...." A great and memorable line. 

But time has passed and these days the discussion should be a bit more lively. 
The hardest working Judge? That's easy. Tom Scott, both as a circuit judge in the then Justice Building and then as a district court judge, Scott  set the bar very high. Janet Reno said she never saw a judge try more cases in one year than Scott did when he was in the Justice Building. But does he deserve discussion as the best? Perhaps. 

We would put the late Rob Pinero in the discussion. Hard working, sensible, fair, he was everything you wanted in a judge. He earned being in this discussion and we'd take him in any case. Period. 

In Federal Court we had the great pleasure of trying cases before Jose Gonzalez and Ned David, two of the very best we have ever seen.  

County court judges often become circuit judges but some stay their entire career in county court and become damn good judges. Put the late Henry Oppenborn  and the current Keieger-Martin in that category. 

Judge Fred Moreno has to have a place at the table here. County court judge, circuit judge. district judge, chief judge of the southern district- he's done it all here in South Florida and done  a damn good job every step of the way. 

These are our thoughts, but what are yours? Make some nominations, explain your reasons, and perhaps we'll have a a few runoffs until we arrive at a winner. 

See You In Court. 

FYI: sitting north of the border does not, per se, eliminate you from this discussion, but for the purposes of this discussion,  being a judge in Broward...well, res ipsa loquitor. 

Sunday, July 29, 2012

Limited Registry Act II

What were you doing when the great and unexpected Saturday-FACDL Listserv-Limited Registry kerfuffle erupted?  Were you watching the olympics, grilling some ribs, or emerging from the shadows of some cheap yet thrilling Saturday afternoon assignation? 
For those of you who wear robes (and are thus not allowed to receive Listserv emails) prosecute (ditto) or were  just blissfully enjoying a Saturday afternoon, the email from David S. Markus (NOT DOM- David O Markus, the fine federal attorney and proprietor of the Southern District Of Florida Blog) where he “named names” and listed the phone numbers of five defense attorneys who had signed up for the category of the limited registry that enables them to receive murder case appointments for a cap of $2,500.00 in fees burst across the legal landscape of Miami like an unexpected appearance of Halley’s comet, or a judge picking up the check at lunch.
Mr. Markus’ email was lengthy, explaining his position and his conversations with two of the attorneys who signed up and deigned to speak with him. One lawyer basically told him “FU. I can do this and make it work for me” while the other not only gave an impassioned plea on the need for quality defense for the indigent, but ended up agreeing to serve as a co-petitioner on Mr. Markus and the FACDL’s quixotic quest to sink the limited registry. 
Know this: Mr. Markus is correct in all respects. With regards to the lawyer who thinks he can make this work for him economically with an economies of scales approach in which, by taking a lot of cases, the volume of work and fees makes up for the few cases he ends up trying for $2,500.00, the lawyer will fail because the committee overseeing the appointments to attorneys on the limited registry is going to impose a small cap on the number of open cases an attorney can have. Thus when the litigation of these cases bog down with intransigent  prosecutors (“I know your client probably didn’t do it but the victim wants the max and their feelings and knowledge of the legal system supersedes mine”)  and difficult clients (“Man,  you just work for the state. That video ain’t me and that DNA ain’t mine”)  the financial realities of working for years to earn $2,500 will trump visions of grandeur: “Let’s see. If I take a thousand cases at $2,500 that is...umm...two and half million dollars! So I have to try ten of them. I can still afford that vacation condo in the Keys....”
With regard to the lawyer out to save the world, Mr. Markus’ rejoinder to him was spot on: the way to ensure that indigent clients get good legal representation is not to give into the Legislature but to defeat the limited registry, because if nobody signs up, then the appointments automatically go to the general registry wheel where attorneys are not reduced to hourly fees less than than those who clean the REGJB bathrooms (who also deserve a big raise by the way.) 
We struggled with publishing Mr. Markus’ email because he included the names and phone numbers of those misguided lawyers who got down on their bellies and prostrated themselves before the Florida Legislature who has blatantly sought to treat criminal defense attorneys in this state like “dogs needin a whuppin”. We won’t lick their shoes and our colleagues who have ought to be ashamed of themselves. That being said, we were cautious about using  the blog as a public vehicle to upbraid our colleagues, however in need of upbraiding they may have been. Events however, have overtaken our caution.
So here is the email which most of you have probably read. Have at it. 
Sleepy summer weekend? HA!

Saturday, July 28, 2012


There's something vaguely disconcerting about this. Fox guarding the henhouse type of scenario. But that being said,  the other day brought  this news from the Statewide president of the FACDL ("pay your dues!!")

I am happy to announce that this morning the Florida Bar Rules Committee unanimously voted against changing the rule to prohibit non refundable fees! This would not have happened without the incredible dedication and hard work of our ad hoc committee.  We made personal contacts with every member of the committee armed with talking points. 

This is a shining example of how FACDL makes a difference. 

Special thanks to David Rothman, Scott Fingerhut and Jim Miller for assisting in this cause. 
Derek Byrd, Esquire
Personally, we just give the money back before the arraignment unless we have done a lot of pre-filing work. Rarely happens. Perhaps twice in the last five years.  

If you missed the wonderful ceremony the other day, here is the recap of Judge Ariana Fajardo being sworn in. Congrats!

Coming Monday: The Best You've Ever Seen. 
Only on your favourite, award winning* legal blog. 
Enjoy your summer weekend. 

*Honorable mention in the 2010 Croatian -US legal blog contest.

Friday, July 27, 2012


South Florida Lawyers reported on how the State Attorney was Zlocked ( (c) Justice Building Blog 2012, all rights reserved) in her recent lawsuit to open up the August 14 "primary". 

Trivia question: which current circuit court judge was reported to the bar by then chief judge Tjoflat of the 11th circuit  when he was a defense attorney and made fun of the judge's name in a FACDL mailing?  Judge Tjoflat is currently the longest serving federal appeals court judge since although he is eligible for senior service, he has not elected it. Judge Tjoflat was appointed to the 5th circuit by President Ford and confirmed in November 1975. 

By the time you're reading this, the Bar Exam in Florida is OVER. Congrats to all those who finished, and we sincerely hope you never have to go back to Tampa... unless you want to. 

The Olympics have already started and the opening ceremony is tonight. 
USA...USA.... actually our loyalties lie with the host country. Rule Britannia and all that. 
Meanwhile Mitt Romney's visit to our beloved London has set back US-Great Britain relations worse than the war of 1812. Open mouth...insert foot (albeit covered in silk socks and $1,000.00 shoes) 

DOM has a "feisty" (his word, not ours) update. 

Shooting tragedy: Carol City Highschool graduate Paul Royal, age 18, days away from starting his college football career, was shot and killed outside his home Tuesday the Herald reports.  Royal who wanted to get out of Miami before becoming another statistic becomes just that: one teen every three hours is killed by gunfire in the United States. Hard to figure out how having more guns in circulation would have stopped this tragedy. 

Another steamy summer weekend is upon us. 

Wednesday, July 25, 2012


Your Florida Marlins packed it in this year, trading former NL batting champ Hanley Raminrez to the Dodgers and Anibel Sanchez and Omar Infante to the Tigers. We think they pulled the trigger too soon. 
Teams can make comebacks. 

Speaking of comebacks,  this documentary is about supermodels as they age. 

Is it us or is the REGJB just empty this summer? 

Mike Walsh is in trial in an interesting murder/self defense case before Judge Firtel. This is week two. You can check it out on the the 4th floor. 

Gun Control in the United Kingdom: here is how the UK responded to gun massacres. In August of 1987 a gunman killed sixteen people in Hungerford using semiautomatic rifles. The next year the Firearms Act was amended to ban the possession of  some semiautomatic weapons and shotguns with a capacity of more than three shells. 
In March of 1996 a gunman killed sixteen school children at the Dublane school.  In 1997 the Firearms act was amended to ban the possession of all semiautomatic rifles and handguns in the United Kingdom. 

In the United States in 2007 a gunman using semiautomatic weapons killed thirty two people at Virginia Tech. 
In 2012 in Colorado, a gunman killed twelve people and injured dozens in a shooting in a movie theater. 

The response to the last two firearm massacres in the United States has been, with regard to gun laws, do nothing. 

Wow. How tragic. 

See You In Court.

Tuesday, July 24, 2012


QUICK TUESDAY UPDATE: Both South Florida and DOM cover the Gene Stearns win in the 11th circuit for Bank Atlantic. DOM argues before the 11th Circuit in Miami this week. Perhaps today? 

The NCAA slapped Penn State hard yesterday. It will be 2022 before the football program full recovers from the penalties. But to take away all the football victories since 1998 seems ridiculous, since it punishes players who had nothing to do with Paterno's malfeasance.  As we all know in Florida, "willful blindness" is not a defense. 

LESS IS MORE? Only if you're from another planet or are a Republican. 
Scenario: Its August 28th, 2012. A strange looking man is lurking outside the convention center in Tampa. It's 96 degrees and yet the man is wearing a long rain coat. His eyes appear glazed, he hasn't shaved or bathed in several days,  and he is muttering to himself while pacing back and forth. A police officer approaches him and pats him down. He finds a .45 caliber Sig Sauer in a holster tucked into the back of the man. In his wallet is a valid CCW permit.  As the officer continues his investigation a  young man chases his girlfriend with a water pistol, squirting her as they both scream in delight. Which one can be arrested? *

Outside of drugs, Republicans seem firmly committed to the type of math that bankrupts companies and governments. Less is more. Less taxes equals more tax revenue. Less guns equals more gun violence. Less government equals more government success. Only with the war on drugs do they seem to believe that less drugs equals less drug addiction. 

Regarding guns, the Republicans seem very committed to the idea that society can only be better, more peaceful, and less violent if everyone was armed. The more guns the better. There are hundreds of millions in guns in the United States and the death rate from homicide by firearm is roughly almost 4 per 100,000 people while in Canada, The United Kingdom, Switzerland,  France, Norwa, Greece, Poland, Hong Kong, Chile, South Korea, and Japan the death rate is always less than 1 per 100,000.  Source.

The Brady Center writes: U.S. homicide rates were 6.9 times higher than rates in the other high-income countries, despite similar non-lethal crime and violence rates (as reported in other studies).  The firearm homicide rate in the U.S. was 19.5 times higher.  

The researchers conclude that “Whatever our basic level of violence, the empirical evidence from ecological, case-control, and other studies indicate that readily accessible firearms - by making killing easy, efficient, and somewhat impersonal - increase the lethality of violence”

How many more innocent people-children and adults- need to die before we do something to stop the madness?

* As we reported yesterday, Tampa has passed an ordinance outlawing the possession of squirt guns but cannot pass an ordinance outlawing or restricting the possession of firearms as such a local ordinance about firearms (as opposed to anything else, like squirt guns, donuts, frisbees, etc) is prohibited by Florida Law. 

Monday, July 23, 2012


Before we begin in earnest, a jolly good show by golfer Ernie Els who won the national championship (British Open to y'all) at Royal Lytham & St. Annes in Lancashire.  Mr. Els won his second national championship ten years and one day after he won his first, and he becomes one of only a few golfers to win a major golf championship in three decades. Well done Mr. Els, well done indeed. 

Security plans are being implemented in Tampa for the August 27th Republican National Convention.  Local ordinances banning the possession of  water guns, chains and hatchets have been enacted. 
Firearms? Your second amendment rights are safe. Florida law PROHIBITS local ordinances regulating the possession of firearms.  Seventy five people get shot up at movie theatre in Colorado, but in Florida your right to possess a firearm is safe and secure, because what we need are more guns in this society, not less. And spare us your far flung fantasies of if everyone in the theater was armed then the tragedy in Colorado wouldn't have occurred. If no one had access to a firearm then there would be no tragedies like this. End of discussion. 

Your favourite  recent law student graduate is entering the final hours of prep for the Bar exam which is to be given this week in Tampa. As practicing lawyers we can all say "been there, done that" (hopefully once). 

Starting today, if you listen closely in court, you just might hear a limited registry attorney ("reasonable doubt for a reasonable price") appointed to an unfortunate soul needing quality criminal defense and instead receiving a "K-Mart"/McDonalds quality attorney. 
We have not yet decided on whether to publish the list of those unfortunate and misguided souls who have signed up as unwitting co-conspirators with the Florida Legislature's naked attack on criminal defense attorneys in this state. But we invite any individual to write us a defense of why they chose to participate in this program, and we promise to post their missive on the front of the blog, unedited, and they need not sign their name if they wish to remain anonymous. 

Not a great start to a rainy hot and muggy week. Even so, See You In Court. 

Friday, July 20, 2012


"Downtown boys they talk so pretty, 
It's so hard to be a saint in the city."
Bruce Springsteen, It's Hard to be a Saint in the City. 

When scandals like this happen there is always a natural inclination to believe that there is more to come.  Some sources tell us that there are more bailiffs involved and other sources tell us absolutely not. There really is no way to tell. But know this: this was not the only improper/illegal referral of cases occurring in the REGJB. Not even close. 
What do you think? Was this the only bailiff doing this? 

New Jersey has become one of the first states to recognize the problems inherent with eye witness identification.  A judge now must tell jurors before deliberations begin that "for example, stress levels, distance or poor lighting can undercut an eyewitness’s ability to make an accurate identification. Factors like the time that has elapsed between the commission of a crime and a witness’s identification of a suspect or the behavior of a police officer during a lineup can also influence a witness"  the new instructions warn.
And in cases involving cross-racial identifications, judges now instruct jurors that “research has shown that people may have greater difficulty in accurately identifying members of a different race. You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification... Human memory is not foolproof. Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.”
A good start.  Thanks to David S Markus (not DOM) here is the complete instruction:
New NJ Instruction On eyewitness identification
A Sharp Edge: Interesting case going on in Broward. Read the following document to get the details. Basically the Broward cops use a CI to infiltrate a 12 step program and take down someone who is relapsing by getting them to traffic in drugs. Sad and shocking. 
Very Version Final Final Final Sharp-5xxxx-2

There is something unsettling about the bailiff scandal. It's hard to put our finger on it. Something about the client being called by the bailiff for money and more money and then a gift. Something about the lawyer letting the bailiff run the client in terms of quoting and collecting the fee. It just makes all of us look bad. We're not calling for anyone to be disbarred or for the bailiff to go to prison. We're just saying the whole episode is unseemly and it reflects badly on our profession and it cheapens what we do. In the end, that's what the punishment in this case (if there is any) needs to reflect. The effect on our profession, our courts, our reputation. 

The more we think about this mess, the worse we feel. 

But a nice summer weekend is coming up. Get outside and enjoy it.

Wednesday, July 18, 2012


Sorry to step on the Captain's toes, but this is breaking......
Time was when a young ASA or PD, upon leaving their office, needed a few things to set up shop and get into business: 
An office ( ); an easy to remember phone number ( ); 
a beeper (and later a cell phone) ( ); a receptionist ( ); 
a bondsman, a bailiff and a few corrections officers to feed you cases ( )

With the advent of the internet we thought things had changed. We were wrong. 

Olga Durand, who was last seen in the REGJB as the bailiff for Judge Reemberto Diaz, was arrested Wednesday for taking money from a defendant to assist him with his traffic cases. 
Ace Herald reporter David Ovalle broke the story here.  The Herald also has 4 surveillance videos, mostly of the individual who was cooperating handing envelopes to the bailiff outside of family court. 

Rumpole says:  Bailiffs (and bondsmen and corrections officers)  steering cases to defense attorneys is the second oldest profession in Dade County (Ok, third behind selling tickets to the cockfights).  There are two attorneys named in the arrest warrant as being the recipient of the cases that the bailiff was hustling. We refrain from mentioning their names at this time, because they have not been charged to our knowledge. However, until the Dade SAO gets of their ass and takes down the attorneys kicking back fees to bailiffs, bondsmen and corrections officers, this kind of crap - which takes money away from all the honest lawyers in Dade County (insert your punchline here) - will never go away. 

Update: We've carefully read the arrest warrant affidavit and we do not see that the attorneys mentioned committed a crime. That's the best we can say about them. Since when did continually shaking a client down for money become the sole focus of a law practice? Because that is a fair assessment of what occurred here. Sure the lawyer showed up for court. But it does not appear the lawyer met with the client and carefully prepared a defense strategy. We feel pretty comfortable guessing that no detailed motions were filed. That a meeting with the client reviewing the prosecution's discovery never occurred. All that happened was the client was hustled to a lawyer and continually shaken down for more fees as the lawyers coasted on gaming the system and hoping the police would not show up.  There is no crime in those facts (assuming the lawyers were not involved in the procurement of the fake certificate of completion of traffic school). But that is an awful way to practice law.  In fact it is not practicing law. It is taking money under the color of a law license. It's embarrassing and demeans the rest of the defense bar. 

SeeYou In Court. 

Arrest Warrant




In this year's version, 13,152 members of the DCBA were asked to send in their ballots rating our Circuit and County Court judges, (those up for election), and the judicial candidates as to whether they were: Exceptionally Qualified (EQ), Qualified (Q), or Unqualified.  There were a total of 1,439 ballots returned, although not every judge had that many total votes;(there were many "No Opinion" responses).  The first order of criticism usually comes from those that say, "that is too small a number" to represent any true test of the qualifications of the judges.  Au contraire my friends.  First, pollsters use much smaller samples on a regular basis.  And second, remember that there is a large segment of the membership of the DCBA that has never seen the inside of a State courtroom.  These votes come from those members that regularly appear in court.

And your winners are:


Top rated as Exceptionally Qualified:

Judge Stan Blake - 71%
Judge Beth Bloom - 53%
Judge Joel Brown - 50%
Judge Cindy Lederman - 50%

Lowest Percentage of Unqualified votes:

Judge Blake - 1.32%
Judge Dennis Murphy - 3.56%
Judge Bloom - 4.24%
Judge Darrin Gayles - 4.52%

Highest Percentage of Unqualified votes:

Judge Gisela Cardonne Ely - 32%
Judge Maria Espinosa Dennis - 23%
Judge Maria Korvick - 23%
Judge Valerie Manno Schurr - 22%

We have it from a very good source that the 1.32% (13 votes) that voted Judge Stan Blake as Unqualified come from one of two categories: 1. Disgruntled attorneys in family court who did not get awarded their legal fees, and 2. Disgusted attorneys who have viewed the video below and found out that the person/body part appearing at exactly the one minute mark is a stunt double and is none other than our own Judge Blake:*

For those of you Ipad and Iphone users unable to view the video, here is the link:http://www.youtube.com/watch?feature=player_embedded&v=wyx6JDQCslE&oref=http%3A%2F%2Fs.ytimg.com%2Fyt%2Fswfbin%2Fwatch_as3-vfl3J-I2Q.swf&has_verified=1


Top rated as Exceptionally Qualified:

Judge Steve Leifman - 54%
Judge Andrea Wolfson - 52%
Judge Charlie Johnson - 49%
Judge Sam Slom - 47%

Lowest Percentage of Unqualified votes:

Judge Luise Krieger Martin - 5.10%
Judge Leifman - 5.35%
Judge Slom - 5.41%
Judge Johnson - 5.60%
Judge Shelly Kravitz - 5.67%

Highest Percentage of Unqualified votes:

Judge Ana Maria Pando - 60%
Judge Gladys Perez - 21%
Judge Patricia Marino Pedraza - 20%
Judge Maria Ortiz - 18%
Judge Gloria Gonzalez Meyer - 15%



Judge David Miller - 86% voted him EQ or Q
Mauricio Padilla - 51% voted him Unqualified

Robert Coppel - 92% voted him EQ or Q
Maria Verde - 36% voted her Unqualified

Alex Labora - 64% voted him EQ or Q
Maria Santovenia - 71% voted her EQ or Q

Victor DeYurre - 40% voted him Unqualified
Teresa Pooler - 81% voted her EQ or Q


Frank Hernandez - 48% voted him Unqualified
Judge Marino Pedraza - 81% voted her EQ or Q

Diana Gonzalez - 72% voted her EQ or Q
Judge Pando - 60% voted her Unqualified

Michelle Alvarez Barakat - 29% voted her Unqualified
Judge Lobree - 89% voted her EQ or Q

Arthur Spiegel - 42% voted him Unqualified
Geer Elaine Wallace - 29% voted her Unqualified
Judge Wolfson - 92% voted her EQ or Q

Ivonne Cuesta - 82% voted her EQ or Q
Jacci Seskin - 54% voted her Unqualified

Tanya Brinkley - 76% voted her EQ or Q
Enrique Yabor - 50% voted him Unqualified

John Rodriguez - 41% voted him Unqualified
Judge Lundy Thomas - 86% voted her EQ or Q

Lourdes Cambo - 51% voted her Unqualified
Judge Don Cohn - 91% voted him EQ or Q

The entire Dade County Bar Poll Results can be found here:


*Judge Blake was quoted in the DBR, on the results and his high numbers: ""I have a sense of humor that I think helps people feel comfortable, both the lawyers and the litigants," he said. "They see that I don't take myself too seriously."

The election is set for Tuesday, August 14, 2012.

CAPTAIN OUT ...........

Tuesday, July 17, 2012


Which former US Attorney declared the United States war on drugs "a failure"?
None other than New Jersey Governor Chris Christie.

Cocaine and heroin are now no longer the prime targets. Prescription painkiller drug abuse is now the new top priority. 

John Kerry, upon returning from Vietnam and before he entered politics,  famously asked how do you ask a man to be the last man to die for a mistake?

Who wants to be the last Judge to sentence someone to a 15 or 25 year drug minimum mandatory? 

When Governor Christie called the drug war a failure, he said that the war "imprisoned people who really needed treatment." 

A quick aside about minimum mandatory sentences- where do they come from? How did the Florida Legislature decide that 28 grams of cocaine should merit a three year minimum mandatory prison sentence? Why not 30 grams and two years? Were studies done? Was there any rationale behind the 3 or 5 or 7 or 15 year minimum mandatory sentence? Or did we just lock people up for the hell of it, because the numbers sounded nice? 

Here's the NY Times article on the drug war. 

Donald Sobol, the author of Encyclopedia Brown passed away at age 87.  And author Stephen Covey who wrote the 7 Habits of Highly Effectively People also passed away, he at age 79. 

The BBC reports that President Assad of Syria may use chemical weapons against his own people. Nice. 

Monday, July 16, 2012


A juror serves on a high profile case and in the jury room votes for acquittal.  The jury divides along racial lines and eventually returns a verdict on a lesser offense. The juror, upset at the result, calls the Judge to let him know what occurred.

What does Judge Michael Robinson of Broward do?

A) Disclose the juror's allegations to both parties and hold a hearing?
B) Speak to the juror to find out exactly what occurred?
C)  Have a staff member call the juror back and strongly instruct the juror to not speak to anyone and order the juror to meet with the judge alone at 8:30?

If you said C, then you remembered we're dealing with a Broweird judge here.
The JAA Blog has all the details here. 
The Juror's affidavit is here (the juror ignored the judge's "request" and obtained counsel.)
Affidavit Bent

Can someone explain to us what it is with Broward? 
Is it the water? What causes people up there to behave this way? 

The Herald endorses Kathy Fernandez-Rundle here. 
After 19 years in the job the Herald says she has earned another term. The State Attorney has consistently held a 55-45% lead in our unscientific and informal poll. 

Sunday, July 15, 2012


The facts: Only 55% of 43,755 law school graduates had law related jobs 9 months after graduation in 2011. 
At the top 20 law schools with the highest job placement rates, 83% of graduates were working as lawyers; at the bottom 20 only 31% were working as lawyers. 

The average law school graduate in 2010 had school related debt of $98,500.
The cold hard numbers show that we have too many lawyers for the work available and too many law schools churning out even more unneeded lawyers. These law school graduates are being let loose on a dismal job market, and they are competing in this market with enormous mountains of debt, having been sold a pipe dream that graduation and passing the bar would automatically lead to a secure career. Somebody needs to put a stop to this train which is barreling out of control. 
The NY Times article on this mess is here. 

On Tuesday July 24 the latest law school graduates will convene in Tampa to take the Florida bar for two days. While youth may be wasted on the young, there is very little to envy about this group of young lawyers who have unprecedented challenges standing in their way to practice the career they trained for. We wish them luck. 

In light of the Freeh report released this week, should the NCAA step in and suspend Penn State football for this year and/or beyond? 
Is it appropriate for football to be played in "Happy Valley" this September with all that we now know that went on there? 

Coming Monday: The surprising response to a juror who says a verdict was racially motivated. 

Friday, July 13, 2012


Take a look at  the Wadada Delhall opinion on the Florida Supreme Court website here.  It's a big opinion, but starting under this heading "Improper Prosecutorial Comment" on page 59 of the opinion, there are some disturbing issues. 

The death penalty was reversed because of the improper comments of the prosecutor. Some highlights include: calling all the mitigation evidence "an excuse" which is improper denigration of mitigation evidence. The Florida Supreme court has since 2000 put prosecutors on notice that they may not call mitigation evidence an excuse.  The prosecutor continually-  while ignoring the trial court's admonition to not do so- called the defendant "dangerous"  Since 1983 the Florida Supreme Court has consistently warned prosecutors that arguments of future dangerousness "are prosecutorial overkill." See, Teffeteller v. State, 439 So.2d 840, 845 (Fla. 1983).  Citing the prosecutor's conduct in both the guilt and penalty phase, the court wrote: "We have cautioned in the past that a prosecutor shall not exceed the bounds of proper conduct and professionalism by overzealous advocacy, which is especially egregious in a death case...The prosecutor in this case, by her overzealous and unfair advocacy, appeared to be committed to winning a death recommendation rather than simply seeking justice. On numerous occasions, as discussed earlier, her improper advocacy continued even after an objection was sustained. In one instance, the judge was forced to step in and specifically admonish her to stop it. Yet, she continued in spite of this admonition."

If you watch the video of the oral argument here, (nb. you need a flash player, so a Mac wont work) it is even worse. The justices were exasperated with the prosecutor's  conduct detailed in the transcript and they questioned the attorney general if the prosecutor was an experienced prosecutor, and if so, why did the conduct continue after the judge sustained repeated objections? 

Why indeed? And does the State Attorney have anything to say about it? This is a death case. If there is one place where such overzealous conduct cannot be permitted, it is in this type of case. 

Equally upsetting, but for different reasons, is the Florida Supreme Court's decision in  State v. Adkins, in which the court upheld the constitutionality of Florida's drug possession statute despite the absence of any requirement that the prosecution prove mens rea.  

Justice Pariente's concurrence starts:  "Forty-eight states, either by statute or judicial decision, require that knowledge of a controlled substance—mens rea (―guilty mind)—be an element of a criminal narcotics offense ..."

Justice Perry's dissent is even more powerful in its opening:

"I cannot overstate my opposition to the majority‘s opinion. In my view, it shatters bedrock constitutional principles and builds on a foundation of flawed common sense." 
And in its closing: "The majority opinion sets alarming precedent, both in the context of section 893.13 and beyond. It makes neither legal nor common sense to me, offends all notions of due process, and threatens core principles of the presumption of innocence and burden of proof. I would find section 893.13 facially unconstitutional and affirm the trial court order under review."

Rumpole says: Something tells us if Justice Canady (author of the majority opinion)  mistakenly picks up the wrong attaché' case containing 100 grams of heroin the next time he is traveling in an airport, he will not be prosecuted and sentenced to the 25 year minimum mandatory despite his approving citation to this reasoning: "Common‘ sense tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled."

Although our job just got a little harder, see you in court. 

Wednesday, July 11, 2012


2,400 page views on Thursday. 
Coming Friday: What does a Dade County Death Penalty Prosecutor and the rest of the criminal defense bar have in common? A Supreme disappointment. 


It is a period of civil war. FACDL/rebel lawyers, striking from a hidden base,  are attacking Darth Brown and the Limited Registry-Death Star run by the evil Galactic JAC empire and ruled by the evil Emperor-Governor Scott.  FACDL/rebel spies have managed to steal the secret plans to the Limited Registry-Death Star. Pursued by the Emperor-Governor Scott's sinister agents, Princess Carmen races to court, custodian of the plans that can save the FACDL and restore freedom to the galaxy....

"Don't be too proud of this technological terror you've constructed."                                                                           Darth Vader.

As our movie opens the Emperor-Governor Scott orders Darth Brown to move the death star-Limited Registry into range of Alderaan- home of the General Registry Attorneys and to issue the administrative order enacting the Limited Registry. Meanwhile, an intrepid band of ragtag warriors fight the empire. 

Emperor-Governor Scott: "In one blow Darth Brown we will enact the Limited Registry and kill the General Registry lawyers." 

Darth Brown: "Not too fast my lord. Not even the death star can match the powers of the force." 
EGS: "Princess Carmen is in our custody. Now Darth Brown....fire the death star! Enact the Limited Registry! Issue the administrative order!  And we shall destroy the General Registry and criminal defense in the Galaxy. "

But the rebels fight back. Having lost the first battle against the powerful Darth Brown, a new plan of attack has emerged: A Declaratory Judgment Act lawsuit has been filed. The rebels are attempting to seek a stay of the death star-limited registry.

A JAC lawyer rushes up to the evil Emperor Governor Scott and Darth Brown: "We have analyzed the rebel's attack plans. There is danger."
EGS: "Fire the death star! Darth Brown- issue the administrative order now! Kill the General Registry Attorneys. "

But Brown cannot issue the administrative order. 
Darth Brown: "The force is strong with this one."
 Will Darth Brown get the death star/limited registry working and issue the administrative order before the FACDL rebels can destroy it?

Who gets to be Hans Solo? 
Are Wookies allowed through the attorney entrance at the REGJB?
See You In Court.  
The stories depicted on this blog are works of fiction. Any similarity between actual individuals, either living, dead, or members of the judiciary and actual individuals is purely coincidental.

Tuesday, July 10, 2012


UPDATE: Over 2,000 individual page views today! Chief Judge To FACDL: Drop Dead!

Several attorneys have emailed us details of the hearing Tuesday afternoon before CJ Joel Brown on the FACDL's motion to stay the administrative order putting the dreaded Limited Registry (Motto:"Reasonable doubt at a reasonable price.") in to effect. We have ascertained the following:

Invoking a little known codicil in the Faber College/11th Judicial Circuit's operating procedures (last used by Dean Wormer, see In Re: Animal House) in times of emergency, the Chief Judge refused to hear the motion to stay the implementation of the administrative order. (see 1:15 of the video clip)

Actually the Judge invoked the Judicial Cannons of Ethics ("Thou shalt not rule on anything of importance unless there is no way out"...."thou shalt have no other false idols before me" -woops- wrong set of commandments) which he claimed prevented him from commenting on an issue when there is pending litigation.

There was stunned silence in the courtroom as lawyers scrambled on their IPADS and IPhones to pull up the rule that gaged the Judge. Huh? Brown somehow reasoned that since there are other pending legal challenges to the Limited Registry law, the challenge to his administrative order cannot be heard. And he cannot even comment on why.  Here is a partial transcript of the hearing:

FACDL: Judge can we ask a question.
Brown: Yes, but I cannot answer it.
FACDL. Can you elaborate on your ruling?
Brown: I know nothing! I see nothing! I hear nothing!

Miami Herald: Is there an "e" in Brown?
Brown: No.

Brown: "The time has come for someone to put their foot down. And that foot is me!"

See You In Court.


A "sit-down" now has a whole new meaning. 
From a soon to be released study: Sitting down for more than three hours a day can shave a person's life expectancy by two years, even if he or she is physically active and refrains from dangerous habits like smoking, according to a study to be published on Tuesday in the online journal BMJ Open..."Several studies show that when you're sitting, your leg muscles are completely inactive... When you're sitting and completely inactive, this is when you run into trouble managing blood glucose."

Now who do we know who sits at work? Hmmm.... who sits at work? On a bench...wears a robe....never mind. Sitting is good. Sit all you want your honor. 

Tom Logue is your new 3rd DCA judge. We don't know him, but the Captain's run down on his credentials in the comments on Monday indicate he is well qualified and has impressive credentials. Logue has big shoes to fill as he is the replacement for Judge Juan Ramirez who recently retired. 
Just try to stand during oral argument and you'll be fine Judge Logue. 

Monday, July 09, 2012

Judge Juan Ramirez is now blogging for South Florida. We expect great things. 

Ernest Borgnine passed away Sunday. He won the academy award for best actor for his portrayal of a sensitive and lonely New York butcher in Marty in 1955. A great film. 

The SCOTUS blog has a breathtaking second by second account of the moments before and after the Supreme Court delivered its opinion in the health care case and the reasons why two networks made the wrong call-initially telling its viewers that the court had struck the entire law down. 
There are interesting tidbits such as the court refusing to email the opinion once it was announced:
The Court’s own technical staff prepares to load the opinion on to the Court’s website.  In years past, the Court would have emailed copies of the decision to the Solicitor General and the parties’ lawyers once it was announced.  But now it relies only on its website, where opinions are released approximately two minutes later.  The week before, the Court declined our request that it distribute this opinion to the press by email; it has complete faith in the exceptional effort it has made to ensure that the website will not fail.

But it does.  At this moment, the website is the subject of perhaps greater demand than any other site on the Internet – ever.  It is the one and only place where anyone in the country not at the building – including not just the public, but press editors and the White House – can get the ruling.  And millions of people are now on the site anxiously looking for the decision.  They multiply the burden of their individual visits many times over – hitting refresh again, and again, and again.  In the face of the crushing demand, the Court cannot publish its own decision.
The opinion will not appear on the website for a half-hour.  So everyone in the country not personally at 1 First St., NE in Washington, DC is completely dependent on the press to get the decision right.
Meanwhile although we're into the second decade of the 21st Century, the state courts of Florida are as about as far from electronic filing as the Miami Dolphins are from winning a super bowl. Indeed the question of whether we will be able to upload a simple notice of appearance before the Dolphins reach another super bowl is not easily answered. 
But at least the blog always works. 
See You In Court.