Wednesday, October 31, 2012


Update: The Herald's obit on Judge Klein.

Judge Gerald Klein, known as "Fast Gerry" passed away Sunday at the age of 90. 

Judge Klein was a gem. A man from another time and place when Miami was a small southern town.  Judge Klein served as a county court Judge from 1959-1990 and as a senior Judge from 1991-2007. 

There's one great story (among hundreds) that we love about Judge Klein. The Judge was known as Fast Gerry because at a time when the traffic and crimes sections of county court were separate, Judge Klein would clear his courtroom calendar in the crimes division  and hit the golf links on Miami Beach by 11 am or so most days of the week. 

One day Judge Klein and his partners were robbed in the clubhouse and the news was duly reported probably by the old Miami News at the time. A day or so later a trouble making Herald reporter called Judge Klein to find out what a county court Judge was doing on the golf course at 11 am during a work day when court was in session. "Every now and then court finishes early" Judge Klein was quoted (or words to that effect) "and we can get out on the golf course."

Every now and then was usually about four days a week. But this is not to say that Judge Klein wasn't a good judge. He was a great county court judge during a time when almost nobody went to jail and the county court was a place where most people represented themselves in small disputes. Judge Klein never hurt a soul as a Judge and most people left his coatroom believing they had been given a fair (albeit quick) hearing. 

This is sad news. But at age 90, Judge Klein lived a full life. He loved his job and he was loved by those at his job. What more could you ask for? 

Rest in peace old friend. 

Tuesday, October 30, 2012


Those of us who lived through Hurricane Andrew in Miami have a special understanding what the people of New York and New Jersey are going through and are going to have to endure in the next few days and weeks. Lives turned upside down; no power; perhaps no home; the loss of their possessions and for the foreseeable future, their way of life. 

The memories of the  deprivations we endured in the aftermath of Andrew will never leave us. Personally, we went several days without a fresh brewed cup of coffee and even longer without a fresh breakfast croissant. 


Section 27.5304 created the infamous limited registry for court appointed counsel. 
Judge Sigler has found that the law violates the separation of powers doctrine because the statute essentially gives the court the power to appropriate funds from the court system to cover payments to court appointed counsel when a particular circuit uses more money for court appointments than the legislature designated. 
Scribd is down at the moment. When it gets back up, we'll post the order. Until then, kudos to Judge Sigler for stepping up when other Judges have ducked the issue. Note the color of this sentence is BROWN.  

We all know sex sells. Every Friday, frustrated bloggers check out the cover girl on the South Florida legal blog. From personal experience we also know that putting a Judge Milt Hirsch order on the blog sends readership and comments through the roof. Milt- like a fetching and buxom young lass barely covered- sells. Who woulda thunk it? 

See You In Court. 

Monday, October 29, 2012


UPDATE: Here is the order everyone is talking about. 

Judge Hirsch is at it again. This time with fingerprint evidence. The Herald article is here. 
We're not really sure what he is up to, but the portion of the order acknowledging that just because something has been accepted and the issue appears well settled does not make it so, is an important philosophical point with implications well beyond our jobs. 

The President starts his day in Orlando.  
Update: Early this morning the president's campaign informed us that he was canceling his joint appearance with President Clinton to handle storm related issues. Polls show the president behind slightly in the Sunshine State. If Obama wins Wisconsin, Ohio and Florida, or two of any of those three, game over. The polls remain super tight in almost every so called swing state. If Obama wins Iowa, Colorado, New Hampshire and Nevada, he makes up for the loss of Florida and Wisconsin or Ohio puts him over the top. What all this means is that the road to an electoral college win is slightly easier or the president.  Check out our post over the weekend and use the interactive tool to find out where early voting places are open near you. 

What happens if the super storm knocks out power in NY, NJ, Virginia, Maryland and parts of Pennsylvania for more than ten days and electronic voting machines don't have power? 
Can an election be delayed? 

One thing is for certain: storm related issues have moved both campaigns off the east coast and into the mid-west. There will be no campaigning in Virginia (where a new poll shows the president taking a 4 point lead) North Carolina and New Hampshire. The candidates will have to focus their time in Wisconsin, Iowa and Ohio because east coast cities affected by the storm cannot handle the motorcades and no one will show up anyway. 

300,000 people have been evacuated from lower manhattan. Not only has trading suspended on the NYSE, but electronic trading of stocks has been suspended as well.  That hasn't happened since the mid-1980's. 

Have a great week. The Dolphins beat the j...e...t...s, so the week has to be a good one. 

Saturday, October 27, 2012


Its Halloween weekend.  Trick...? Or Treat?

Early Voting in Florida has begun! Want to find out where to go hang your chad? The President has a convenient tool for you. Click here. Enter your address  and the list of early voting sites nearest you appears. 
Mitt Romney has a similar site but with a twist. When you click, you are getting a helicopter and limo service, which for a total of $9,995.00 will wisk you to a private polling place, where there will be no lines. Affordable for everyone in Mitt's world. 

The State of Florida just can't wait any longer to kill John Ferguson. They asked the 11th circuit to lift the stay of execution. The 11th circuit politely declined. David Ovalle's report is here. 

There's a SUPERSTORM heading for the northeast this weekend and next week. But the good news is that it will not affect any republican in Washington who believes global warming is a liberal fallacy. They will be fine. But everyone else will be without power for days. 

Wednesday, October 24, 2012


The following is a letter fron Ken Hassett. Ken is the only person in the history of the world who has been president of the Miami chapter and Broward Chapter of the FACDL.  The letter is in regards to some problems (shocking) in the way Broward does things. In particular, the Broward ME's office appears to have been run in a slipshod manner. But then again, guilt or innocence or science has never been that important to Mike Satz and the Broward SAO:

Dear BACDL/FACDL-Miami members:
Last night I had a conversation with Mike Satz regarding the Broward County Medical Examiners office and their procedures with respect to the testing of bodily fluids. If you had a case in Broward in the past ...years, where your client's or witnesses bodily fluids were sent to the M.E.'s office for testing of a controlled substance, etc, you may now have some more work to do. This could potentially result in new information that you could use to request a new trial, etc. This could affect DUI's, DUI manslaughter's and any other case where they tested for a controlled substance. The M.E. has specifically advised that it does not include tests for alcohol content (I do not yet know how or why). The current M.E. has now sent the attached letter to Mr. Satz who has forwarded same to me.

The letter basically states that the new M.E., DR. Craig Mallak, has ordered the investigation of all testing of bodily fluids that were conducted during the past 10 years. (i.e., under the previous administration).

The letter states, in part,:
"Most likely, the results provided to the State Attorney's office in the past have been accurate; however I felt a moral and ethical obligation to provide you with this information. In early September, I directed to staff to begin gathering data on the number of live persons' samples that tested positive for drugs in the past ten (10) years; that data was provided to you in hard copy during our meeting today and comprises approximately 3600 individual cases. It is my understanding there is no definitive evidence to suggest that the actual results reported were inaccurate; however, the methods used to extract the information were not previously scientifically validated."

Our question of their expert in any case is logical. Can you state with any degree of scientific certainty that the test results in this case are accurate? After the above statement, how could they answer yes in a deposition, hearing or trial?
Mr. Satz advised me that he has also advised Howard of these developments. I have placed a call to Howard Finkelstein to discuss this matter further.
I will keep you informed as I receive further information.
Ken Hassett
BACDL President

Tuesday, October 23, 2012


In Garfias-Rodriguez v Holder, a divided ninth circuit, sitting en banc (latin for "unhappily all together in the same room at the same time" ), issued a complicated opinion with members of the court all over the place joining in parts of the decision and dissenting in other parts.

Judge Bybee wrote the opinion joined by  Judge Fisher, Judge Rawlinson,  Judge Ikuta, Judge Clifton Judge Ikuta and Judge Murguia.

In National Cable & Telecommunications Ass’n v. Brand X Internet Services, the Supreme Court instructed federal courts to defer to reasonable agency interpretations of ambiguous statutes, even when those interpretations conflict with the prior holding of a federal circuit court. 545 U.S. 967, 982-83 (2005). That is the situation we confront here....
In Acosta v.  Gonzales, 439 F.3d 550, 553-56 (9th Cir. 2006), we held that aliens who are inadmissible under § 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §1182(a)(9)(C)(i)(I), are eligible for adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i), in spite of the latter section’s requirement of admissibility. A year later, the Board of Immigration Appeals (“BIA”) decided that such aliens are not eligible to apply for adjustment of status under § 245(i) in In re Briones, 24 I. &  N. Dec. 355, 371 (BIA 2007). ..

In this case, we must decide whether to defer to the agency’s inter- pretation of the INA and overrule Acosta and, if so, whether the agency’s interpretation may be applied to Garfias retroactively.

We conclude that we must defer to the BIA’s decision, and we hold that the BIA’s decision may be applied retroactively to Garfias. We thus deny his petition for review. 
Judge Graber concurred in part and dissented in part.
Judge Reinhardt and Judge Paez joined Judge Graber's dissent.
Judge Paez and Judge Reinhardt also issued a separate dissent.
Judge Gould concurred.

And then there is from Chief Judge Kozinski at page 12626 of the opinion:
"Chief Judge Kozinski, disagreeing with everyone." 
Classic Kozinski.

Hat tip ATL

Monday, October 22, 2012


You know things are really bad when Hialeah cops are exposing corruption. Here's David Ovalle's story on three Medley cops fired after they wrongly accused a driver of DUI to cover for an officer who crashed his car into the innocent motorist's mini-van. 

If you have a moment scroll down to the weekend post and watch the video on USA Today's investigation into prosecutorial misconduct. 

George McGovern died Sunday. The man most associated with the peace movement of the 1960's-1970's and the call for immediate withdrawal of all US armed forces from Vietnam was a World War II hero. McGovern flew over 30 combat missions as a pilot in the B24-Liberator in Europe and was awarded the distinguished flying cross after safely landing his plane on an island in the Adriatic after it had been hit.  The year after his trouncing in the 1972 election where he received all of 17 electoral votes after a disastrous misadventure in naming Missouri senator Thomas Eagleton as his running mate only to find out Eagelton had received shock therapy for depression, McGovern remarked in a speech "Ever since I was a small boy I wanted to run for president in the worst way. And I did." 

Windows 8 sucks. But then. all Microsoft products stink. 

Enjoy your week. See You in court. 

Saturday, October 20, 2012


USA TODAY investigated prosecutorial misconduct. Say it ain't so Joe!

Our thoughts: Those prosecutors who came up through the state attorneys office when Janet Reno was the state attorney had fairness drilled into them. The culture of the office was to always first make sure the person being prosecuted was not innocent. There was no cutting corners or walking close to the line in how prosecutors conducted themselves and the decisions they made on filing charges or the discovery provided. 

We're not saying any prosecutor* or any particular office disagrees with what we just wrote. What we are saying is that culture of JOB ONE being protecting the innocent and making sure no one is wrongly accused appears to be missing. We see more prosecutors looking for loopholes in Brady then in just working hard to follow what Brady requires.  And that is troubling and that leads to tragedies. 

The link to the video is here. 

Invest the eight minutes to watch how  prosecutors who do not hold themselves to the highest standard can wreck innocent lives. 

Enjoy another beautiful weekend. 

*There was one prosecutor at the Dade SAO who we were certain enjoyed toying with defendants, keeping them in jail longer just because he could and who played all sorts of games with discovery  because he thought nothing could happen to him. Off the record discussions with his colleagues confirmed our observations. Sadly he was a division chief when our paths crossed and his behavior in the case we handled was shocking to say the least. However, karma is a powerful tool and his own personal peccadilloes brought him down in disgrace. Our client thankfully survived his encounter with this evil individual.

Friday, October 19, 2012


The Miami Dade County State Attorneys Office has some rules for E-Service of documents. 

First (really) DO NOT send your documents to the particular assistant state attorney. That would cause confusion. YOU MUST send your documents to the designated address. 

Second: All the addresses end in @MiamiSAO.com if you are sending documents during months that end in R. 

Third: The subject line of the email SHOULD NOT read "choke on this and die scum".  The subject line should read: SERVICE OF COURT DOCUMENTS.  For emergency and immediate delivery, the subject line of the email should also include this phrase "You may have already won valuable prizes."

Fourth: Case numbers should not contain dashes and should be written in the scientifically accepted Reverse Polish Notation. 

Fifth: To encourage use, every eleventh email received will be entered into a blind lottery wherein your client will become automatically eligible for PTI. 

Sixth: Attached documents should be in PDF format and where applicable, contain the notation "NSFW".

TO: Ihavetoaskmysupervisortoapprovetheplea@MiamiSAO.com
Subject: Service of court documents. Open immediately. You may already have won valuable prizes.

Dear Prosecutor. 
Attached please find my motion to dismiss in 130001313
also please find pictures of you at happy hour this Friday. NSFW. 

Sally Bigfees, Esq. 

Note. Pursuant to the IRS code, the contents of this email do not contain any tax advice, although the time I spent preparing the email was billed to the client and is taxable unless the client paid in cash.  This email is the property of the above law firm. The contents of this email are private and confidential. In the unlikely event you received this email by mistake, very bad things may happen to you. First: please retain counsel. Second: Please proceed immediately to the nearest federal express location and immediately send me the email and the hard drive from your computer. Third: Kindly act accordingly. I am so important as a lawyer that I have created a small booklet of instructions that are attached to every email. In order to properly read this email, please go to mybigegolawpractice dot com and download the free e book entitled  "So a lawyer has sent you an email, What do You do next?" Remember, everything I write is not tax advice under the IRS code. I don't practice tax law but I saw some cool warnings about tax junk on an email so I decided to include them on mine so my clients and opposing counsel will think I know a lot about tax even though it was the only subject I failed in law school and the tax code has been changed like a hundred times since then. 

Rumpole is offering a hundred bucks to the first lawyer who is accused of not sending an email that was sent and has to hire some nineteen year old internet guru to prove that the email was sent, the SAO received it, and then promptly lost it. A transcript of the proceedings is necessary to redeem your prize. 

See you in court. 

Miami Sao E-service

Thursday, October 18, 2012


Oil and water do not mix, nor would you invite Barak Obama and Mitt Romney to the same bar to have a few beers. 

Gator fans and Nole fans should generally avoid each other this time of year. The Palestinians and the Israelis haven't been known to call it a day and sit back and down a few cold ones. 
And nobody wants anything to do with the Broward judiciary. 

But for the hopeful amongst us; the ones who keep hoping for another Dolphin super bowl; the ones who are sure that house they bought in 2007 will recover its value; the ones who believe everything they read in an a-form....for all those wild and crazy optimistic dreamers, there is another "Bench and Bar" mixer tonight, where Judges and lawyers get together, hold their nose, and have a few drinks. 

Don't look for us. Optimists though we may be, we have our standards for socializing. 

Have fun. See you in court. 

Wednesday, October 17, 2012


From our friends at the Random Pixels blog, comes this age old defense: "She wasn't blonde".

The Miami defense bar, long famous for innovative defenses (television intoxication: Ellis Rubin, circa 1977), and the Miami Judiciary, sometimes known for casting an appreciative eye at the winsome denizens of South Beach, have a long and glorious history that apparently came to a confluence before the Honorable Judge James A. Dunn. 
The more things change....

See You In Court. 

Tuesday, October 16, 2012




Dog bites man....no story. Man bites dog....story. 

Judge denies request for bond.....no story. 

Judge grants request for bond in murder case.....STORY.  

Why is it that "Spanish language television" doesn't spend all week interviewing the families of defendants being held in jail on no bond? There's fifty of those stories a day at the REGJB.  Somehow, that story just doesn't  play into the media stereotype of the criminal justice system. 

But let one judge do his job one time....
When Judge Milt Hirsch  heard  the evidence on a murder case and decided  to order conditions of release ($100,000 bond and house arrest) the "Spanish language media" in this town went  bezerk, splashing the next of kin all over television bemoaning the "turn em loose" nature of the justice system, when nothing can be further from the truth. 

It's these rare events  (Black Swan events, for those of you that have read Nassim Taleb's great book) that drive the television coverage than in turn drives two bit legislators to try and get a "tough on crime" reputation by sponsoring some bill to address the case that has received all the attention. 

In this case, the question is not if a  "Bill to prohibit the release of people charged with murder"  will be introduced in Tallahassee this spring, but, sadly, when. 

Kudos to Judge Hirsch, not for granting bond, but for not being afraid to do his job, damn the consequences. 

See you in court. 

Monday, October 15, 2012


Judges of all stripes, sizes, abilities and temperaments have come through the doors of the REGJB over the years. Some can't handle it, some think they can handle it but can't, some do a good job, and some do a great job. Every so often a Judge takes the bench who is liked and respected and does an outstanding job and then leaves us all too soon.

Such was the tenure of the late Judge Henry Leyte-Vidal, who was taken from us and his family way too soon by cancer. He is missed and not forgotten and we are proud to help spread the word of the Inaugural Judge Henry Leyte-Vidal Domino Night Against Cancer Benefiting La Liga Contra el Cancer on Friday, November 16, 2012 on the 6th floor terrace of 2100 Ponce De Leon Boulevard in Coral Gables.

If we recall correctly, the judge liked a nice scotch, so come, play some dominoes, help remember an outstanding jurist who is missed, and contribute to a worthy cause.

Leyte Vidal

Saturday, October 13, 2012


Temp dipped below 85, so fall has arrived in Miami. 

DOM's pic from yesterday (guess he skipped lunch). Couldn't happen to a nicer, more deserving  guy. Best of luck Judge Matthewman. 

Results from Friday's informal poll: Judges Murphy, Echarte, Soto, Cueto all had support. Keep writing and we'll put up a formal poll next week to find a winner. 

Indian Food: 
Sometimes you just really want some good curry. 
What's the best places in Miami for some really good Indian? 
Yes, we've been to Imlee in Pinecrest dozens of times.  Surprise us with something new, different, tasty, and fun. 

In the 1980 presidential primaries, George H.W. Bush beat Ronald Wilson Reagan in Iowa's straw poll and the primary in Puerto Rico (which Reagan boycotted). Bush declared he had "Big Mo" as in momentum, heading into New Hampshire. Then he debated Reagan in Nashua New Hampshire (we were there). Because of election laws, the Reagan campaign paid for the event and invited lesser candidates to participate. That caused Bush, who was present, to initially not take the stage. John Green, editor of a local newspaper told a sound man to turn off Reagan's microphone as Reagan was explaining why he included the other candidates. Reagan then roared "I am paying for this microphone Mr. Green." The crowd roared. The video went 1980's ish viral, Reagan won New Hampshire, and that was the end of Bush's Big Mo until 1988. 

538: Nate Silver's political analysis of the election for the NY Times here , is, as we have previously written, the best and most accurate analysis of polls and voting. 
Silver sees a big movement toward Romney. In a word (or two) Romney has "Big Mo"

The question is whether Mitt has peaked too soon?  It was Reagan's last debate with Carter, just a week before the election and still trailing in the polls, when he said "There you go again".  Undecided voters broke big for Reagan after that,  and Reagan's come from behind victory was complete. 

Obama and Romney have two more debates left. Obama is still favoured to win election. The question is whether Obama can stop Romney's Big Mo?  Has Romney peaked too soon? Will Obama have his own "There you go again" moment sealing Mitt's fate to the dustbin of challengers who came up a Bitt (as in Mitt) short. 
23 days to go. 

Enjoy this beautiful weekend. 

Friday, October 12, 2012


As fine a criminal defense attorney that ever walked the halls of the REGJB, Bill Matthewman, is going to be invested today as a federal magistrate at the Ferguson Courthouse downtown.  Everyone is entitled to one mistake in life, and thus we overlook Matthewman's donning of the black robes, and wish him the very best in his new career. The big question on everyones mind is whether everyone's favourite federal blogger will be attending, as the 12:30 start time has put a crimp in his plans for his afternoon repast. 

The nicest thing about appearing before Judge Matthewman will be that regardless of how he rules, as a former trial lawyer (not to mention former police officer) you will know that he has been there, and done that. 

How do you think Joe Biden did last night? We think he did fine. 


One indicator of a successful candidate has often been whether he or she is the type of person you would like to have a beer with. 
Well, we propose that question to you about our judiciary. 
Which judge, if given the chance (and obviously you are buying) would you like to have a beer with? 
Bill Matthewman would be at the top of our list. So would Dennis Murphy. 
Post an answer in the comments section and we'll select the top nominees and have a run off and final a champion.  And if that judge is so inclined, we'll buy the first round. 

Enjoy this beautiful fall weekend. See You In Court. 

Wednesday, October 10, 2012


If you have a conscience, then spend a few minutes and watch this shattering video op ed piece on California's three strikes law. 4,000 individuals have been sentenced to life on non-violent third felonies in California. 

Bottom line: minimum mandatory sentences for non-violent offenses are offensive to American ideals of justice, fairness, due process, and redemption. We challenge you-after watching this brief piece- to explain why the criminal justice in this system is any better than the system in China, Iran or North Korea. 

Five dollars of drugs with two non-violent  priors in California gets you a trial, a conviction, and a life sentence. Shameful. Just shameful. 

Upon reflection, what we are talking about is the difference between guilt and punishment. An enlightened society with a fair criminal justice system understands the difference. Three strikes laws abrogate that difference and throw everyone into the same cesspool. There is nothing enlightened about that. There is nothing "due process of law" about that. There is nothing American about that. And yet, it is what we do. Shameful. 

Tuesday, October 09, 2012




Four weeks from today, our nation goes to the polls to elect the next President of these United States of America.  In many places around the country voting has already begun.  In Florida, if you ordered an absentee ballot, you should be getting that in the mail later this week.  Here are your choices:

Just ask yourself the following question: Do you want to vote for the candidate who took out Bin Laden, or, do you want to vote for the candidate who has vowed to take out Big Bird?  Those are your choices.

On a more serious note, 538.com, the New York Times online thread, still shows President Obama winning the Electoral College on November 6th.  They show him with 302.5 and Romney with 235.5; (it takes 270).

The Times calls the following states Competitive: Colorado (leaning blue); Florida (toss-up); Iowa (leaning blue); North Carolina (leaning red); New Hampshire (likely blue); Nevada (likely blue); Ohio (likely blue); Virginia (leaning blue); and Wisconsin (likely blue).

How close is this election?  If Romney pulls Florida into his court, he picks up 29 electoral votes.  He then needs only 6 more to become our 45th President.  Virginia has 13, Colorado has 9, and Iowa has the exact 6 votes he would need.

The next three debates could prove crucial.  This week it's Biden v. Ryan on Thursday night from Danville, Kentucky.  Next week, on Tuesday, Obama and Romney will hold a town hall style debate from Hofstra University.  The final debate takes place in our backyard, at the FAU campus in Boca Raton on Monday, October 22nd.  That debate will be about foreign policy.

If Obama wants to have another four years of free rides on Air Force One, he better bring his "A" game to his final two debates; last week he didn't even bring "a" game to Denver.  Rumpole has stated more than once on this blog that the only two things that could cost Obama the election are: the debates, or, some world event.  We had a convergence of both in the past couple of weeks.  First, was the attack on our embassy in Benghazi which cost the lives of four Americans including Ambassador Chris Stevens.  It has now been revealed, by recently released emails, that the State Department (Hillary Clinton) pulled most of the security from Libya a few months before the attacks.  Second, was the no show of Obama last week in Denver.

On the local scene, don't forget that we do have one outstanding judicial election as a result of the County Court Run-off between Incumbent Judge Andrea Wolfson and Challenger Greer Elaine Wallace.

North of the Border, in Broweird, there are three run-offs.  In Circuit, former Judge Julio Gonzalez faces Laura Watson.  In County Court, Incumbent Robert Diaz faces Challenger Roshawn Banks.  And, Olga Levine faces Robert Nichols.

Most important in the judicial races is the Retention Vote for three Florida Supreme Court Justices.  Justices Peggy Quince, Fred Lewis, and Barbara Pariente all face the possibility of being voted out of office.  If any of them are, then Governor Scott gets to choose their replacements.  There has been a lot of posts recently concerning the fact that, last week, the Republican Party of Florida voted to make this a campaign issue and supports ousting the three sitting jurists.  Numerous Republican leaders throughout the State have taken a stand publicly supporting the three sitting Justices.

We will also be watching the races for State Attorney in the 16th, Monroe County, as Catherine Vogel (D) is up against Mark Kohl (R) and in the 17th, Broward County, where Mike Satz (D) faces Jim Lewis (R).  There will be a new State Attorney in the 15th, Palm Beach County, as Dave Aronberg (D) is up against Dina Keever (R).

It should be an exciting 28 days running up to the Tuesday, November 6th election.  We look forward to reporting on all of the happenings right here.

If you have any tips to share, please do not hesitate to email me at:



Monday, October 08, 2012


Will Big Bird, Sesame Street and government funding for PBS be the defining moment of the 2012 presidential election? 

Over the weekend we wrote about sentencing guidelines. It was our contention, having lived through both regimes, that a defense attorney has a better chance to do their job when there are no sentencing guidelines at work, then when there are sentencing guidelines driving the sentence. What's your thoughts? 

Dolphins: We're gonna say it right now. The Dolphins are well coached and have a decent team. Mark this day down. Here it goes: "We were....(gulp) wrong." 

Urban Legend: That a county prosecutor in Ohio, in response to a fashion tip from a judge, went to a bathroom, removed her dark coloured panties from underneath her light coloured dress, and returned to court and entered the panties into evidence. As per ATL here.  Never happened. 

Quote for the week:
Good character is not formed in a week or a month. It is created little by little, day by day. Protracted and patient effort is needed to develop good character.

Have a good week.
See You In Court. 

Saturday, October 06, 2012


UPDATE: Nice win for Dolphins on the road in Cincy

This gem tweet from the Economist:

The best time to come before a judge is never. But courtroom lore suggests that after lunch is better than before: 

The article  is entitled Law and Psychology:

Some more findings: 
A study of Israeli parole hearings shows that just before a meal the chances of success are slim. But other biases abound too. A study of 181 American trial judges this summer in Sciencea journal, showed that explaining the biology of psychopathy brought lighter sentences, by an average of one year. When the defence simply told the judges that the convict was a psychopath, the average sentence was 14 years.

Judges—flawed decision makers, like all humans—find sentencing the hardest bit of their job. Paul Chernoff, a retired American judge, says determining guilt or innocence is easier. Biases are visible across countries and cultures: for the same offence, male culprits get harsher sentences than women. Black criminals serve longer sentences than white ones. Attractive women and baby-faced men get shorter sentences.  

Rumpole says: 

States and the Federal Government responded to disparity in sentences for similarly situated defendants (same crime, same back ground) by enacting sentencing guidelines. But interestingly, it was the perception that lower sentences by liberal judges needed to be corrected. And correct it they did. Many federal judges now openly complain at the harshness of sentences they are forced to hand out.   See our post here on Judge Weinstein in Brooklyn, NY, for example. 

We often say to judges who brag about their propensity to sentence defendants to the maximum that any robot or high school graduate can calculate numbers in a matrix to arrive at the highest possible sentence. 

But it takes a Judge- a man or woman tempered by experience in life and law- to properly judge another human being's transgressions. Having worked without guidelines for part of our career and with guidelines for the last 27 years or so, we'll take sentencing without guidelines. The vagaries and personal prejudices of any particular judge are well worth risking in exchange for a real hearing, where the defense has a real chance, based on the particulars of the case, to influence the judge. 

Give us a chance as an attorney to explain why Lennie Small killed the puppy, rather than just calculate the guidelines and minimum mandatory sentence. (For the less literate of y'all, the reference is to Steinbeck's Of Mice and Men, which for you robed readers, is a rather short story.) Yes, there will be excesses on both sides, that's why appellate courts exist (besides writing "per curium affirmed"). 

What do you think?

Better yet, ponder your decision and enjoy our beautiful weather this weekend. You have better things to do. 


Friday, October 05, 2012



UPDATE: ASA Reid Ruben quotes Julius Caesar to jury: "The fault (dear Brutus) lies not in our stars, but in ourselves." 
He stole that from us. 
And we stole it from Felix Unger on an Odd Couple episode. The benefits of a classical education. 

The evidence has been presented by both sides. Closing arguments in the penalty phase of State v. Lebron  today at 10:00 am on the fourth floor before Judge Will Thomas. 

Who shall live and who shall die?

Our prediction, which is nothing shocking, is that the jury will overwhelmingly recommend a death sentence and Judge Thomas will in fact sentence the defendant to die by lethal injection. Then Judge Thomas will warmly wish that the lord have mercy on his soul before Lebron is hauled off to an 8 X10 foot cell at Starke, at which point "The Machinery of death" that Justice Blackmun so aptly described in Callins v. Collins  510 U.S. 1141 (1994) will slowly crank into motion.  

Justice Blackmun's words, so prophetic, are worth another read:

"Bruce Edwin Callins will be executed [tomorrow] by the state of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings... Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the...task of determining whether some human being is to live or die. (Rumpole notes: that "someday" is today on the fourth floor of the REGJB).

We hope...that the defendant whose life is at risk will be represented by...someone who is inspired by the awareness that a less-than-vigorous defense...could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge...committed to the protection of defendants' rights...
Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.. ... Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness 'in the infliction of [death] is so plainly doomed to failure that it and the death penalty must be abandoned altogether. I may not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessen us all."

Wise words indeed. 

Wednesday, October 03, 2012


This says it all:

Update: THE BEST TWEET OF THE NIGHT: no one even comes in second place:

WTF Mitt Romney... :(

Second best tweet of the night:
Yo Mitt Romney, Sesame Street is brought to you today by the letters F & U!  

From high atop the Four Seasons Hotel on Lamar Street in beautiful (but steamy) Houston, Texas, we're LIVE BLOGGING the presidential debate.

@ 7:30 PM, some new numbers from the WSJ/NBC?Marist  Poll:

Florida: Obama 47- Romney 46
Virginia: Obama 48-Romney 46
Ohio : Obama 51-Romney 43.

The race has tightened to a statistical dead heat in Florida and Virginia, but Obama holds the lead he opened up in the last ten days in Ohio. 

Interesting facts: 1) In our life time two Presidents walked away from the presidency (Johnson in 68 and Nixon in 74) and three Presidents lost the presidency: Ford in 76, Carter in 80 and Bush in 92. 
2) You have to go back to Roosevelt, Truman, Eisenhower to find three presidents in a row who won re-election, except Truman, having been appointed to a first term,  was elected only once. 
Before those three, you have to go back to, believe it or not: Jefferson (1801-1809), Madison (1809-1817), Monroe (1817-1825) to find a succession of three presidents each serving two full terms. Obama is trying for a second full term succeeding Bush and Clinton who each had two full terms. 

Like MNF, the game begins at 9pm.  


GABE MARTIN funeral information:

Gabe’s Funeral Service/Burial. The funeral services will begin today from 6 p.m. to 11 p.m., and again tomorrow from 10 a.m. to 2 p.m., and the burial will be at 2:30 p.m. at Our Lady of Mercy Cemetery, located at 11411 NW 25th Street, Doral, FL 33172.

PRESIDENTIAL DEBATE: We'll live blog the debate and also tweet the debate (for those of you that can follow us on twitter).  
Also join us on Google+ where we already have a video of one of our favourite debate moments in history. But to see the fabulous content, you need to join and we will add (most of) you to our circle. 

In Miller v. Alabama, 132 S.Ct. 2455 (2012) The United States Supreme Court brought the United Sates (albeit kicking and screaming) into the realm of civilized nations by prohibiting mandatory life sentences for juveniles, even those convicted of murder. 

Civilization for the rest of the country and world may be fine, but for the 3rd DCA, it doesn't sit too well with them. All that malarky about juvenile's brains not being fully developed and juveniles having an impaired ability to understand the consequences of their actions may have persuaded a bunch of leftist, activist judges in Washington.  But Judges Cortinas, Rothenberg and Fernandez want the world to know they are cut from a different cloth. Juveniles sentenced to life in prison in Florida before Miller are going to serve every day dammit! 

Here is the opinion (from a pro se client no less, so the issue wasn't even briefed by lawyers). Geter v. State. 

It takes 24 pages of stretching and reaching and pulling and tugging to fit the decision in Miller firmly outside those cases that are  a development of  "constitutional fundamental significance." (Lucky for the panel there was no oral argument so they didn't have to keep a straight face while arguing that a constitutional prohibition against sentencing juveniles to life in prison is merely some "housekeeping" and not a change of "fundamental significance.")
 Never mind that Florida has held that the Supreme Court's decision in Graham v. Florida, 130 SCt. 2011(2009),  holding that life sentences for juveniles in non-homicide cases are retroactive. As the decision in Geter  boldy says: Miller is entirely distinguishable from Graham, 130 S. Ct. 2011. Graham categorically barred a life sentence for juveniles which clearly Miller did not. 
Yeah, right.  As our dear, departed property professor used to say: "Sometimes wrong. Never in doubt." 

What's really behind the 3rd's decision? Closing the barn door BEFORE the horses get out: 

Applying Miller retroactively would undoubtedly open the floodgates for postconviction motions where at the time of conviction and sentencing, the judge did not have an affirmative duty to consider mitigating factors of youth. 

Nope. Can't have the floodgates of litigation opened over a minor matter like a juvenile spending the rest of his or her life in hell on earth. Gotta keep those floodgates open for things arising in civil court, like, say, mortgage foreclosures. 

This decision, with all due respect, made us sick when we read it. 
The Florida Supreme Court cannot act quickly enough to overturn this disaster.