Sunday, June 30, 2013


Sad news reaches us this Sunday evening: Judge Robert Deehl has passed away at age 87. 

The Herald Obit is here

Judge Deehl was a judge for over fifty years in this circuit. He brought to the bench a wonderful blend of common sense and wit. 

One insignificant episode stands out in our minds. We were sitting in county court decades ago when a case was called and a older gentleman approached the bench. He was charged with soliciting an undercover officer posing as a prostitute. 

"Weren't you here last week on the same charge?" Judge Deehl asked. 
"Yes sir, I was" the defendant replied. 
"Well, what do you have to say for yourself?" Judge Deeehl asked. 
"I guess Judge, I just fall in love too quick for my own good" the defendant replied. 

When the laughter in the courtroom, led by Judge Deehl died down, he asked the prosecution to give the defendant a break, which they did. 

The Captain reported that the DBR interviewed Judge Deehl recently:
Deehl was recently interviewed by the DBR and had some things to say about being a judge. He did not like the fact that there are many judges now with no previous trial experience. "You need more trial lawyers, ...., to sit as judges, because they know what's going on".

He also warned judges against taking themselves too seriously. "Everyone tells you how wonderful you are when you're a judge. Some of them believe it. They think they can walk on water".

Judge Deehl was a nice man who served this community with dedication and distinction. He came from a time and a place when the practice of law in this town was a bit slower and more genteel. He has been and will be missed. 

See You In Court. 

Friday, June 28, 2013





He did not choose Assistant County Attorney Jason Bloch or Judge DJ Cannava or Judge Wendell Graham or Assistant Federal PD Ayana Harris.

He chose a 33 year old AUSA who has been practicing law for eight years. Luck clerked for Federal Judge Ed Carnes of the Eleventh US Court of Appeals. He then worked for Greenberg Traurig for a year before moving to the US Attorneys Office. He has been there since 2006.

Luck is a Gator having attended UF for both Undergrad and Law School.

Captain Out .....

Rumpole says:And a source none other than everyone's favourite federal blogger, DOM, says Mr. Luck is a good guy and will make a good judge. 

Welcome to the party Judge Luck. 

See You In Court. 

Thursday, June 27, 2013


We talk a lot about heroes, almost always in the wrong context.

A Hero is defined as:
A man admired for his achievements and noble qualities; one who shows great courage.

People who hit balls or throw touchdowns are not heroes. They're athletes. 

The members of our armed forces are heroes.  The Firemen and police officers who ran into the World Trade Centers on 9/11 are heroes. 

And so is  a young Assistant Dade Public Defender who left his comfortable life and safe job at the Public Defenders Office and joined the CIA and was trained as an agent. His name is Gregg Wenzel and he was killed in Addis Ababa, Ethiopia,  on July 9, 2003, ten years ago next week.

Gregg Wenzel was 33 years old when he died. 

When you go to the CIA there is a Memorial Wall. The wall currently has 103 stars.  Each star represents the identity of a CIA agent killed in the line of duty. 77 of the 103 Stars have a name associated with the star in the book or honor next to the wall. The rest of the stars have no name next to the star, indicating that the agent still cannot be identified for security reasons. 
On June 1, 2009, the CIA placed Gregg's name next to a star. 

Brian Tannebaum is having a get together at his office at 5:30 PM on July 9th to honor his friend Gregg Wenzel. You should try to attend, even if you didn't know Gregg Wenzel. The information is below. 

And in our humble opinion, you should do one more thing in remembering and honoring Gregg Wenzel. Enjoy your life. Stop complaining about not finding a parking space close to court. Stop complaining about waiting in line to get into the building. Stop complaining about the 1001 thing that bother all of us every day. Because those small problems that make up a part of our life, are problems Gregg Wenzel will never have. Gregg Wenzel died doing a job that allows us to live these simple, safe lives. Lives that allow us to complain about nonsense that really doesn't matter. So honor Gregg Wenzel, and enjoy your life a lot more, and that will, in some small measure, make his death not in vain. 

And in our humble opinion, maybe the Dade Public Defenders could do something to honor the hero who left their office and died for his country. The Miami Chapter of the FACDL already gives out an award in honor of Gregg Wenzel. But since Gregg was a PD and damn proud of it, maybe it's time the PD office shows that it's damn proud of one of their own. 
A hero. 
Gregg Wenzel. 

Tuesday, June 25, 2013



BREAKING: Patriots TE Aaron Hernandez arrested. 

Investigators will comment later today on what they believed happened to Hernandez's missing arms.
"A football player usually has arms, especially tight ends" said one inside source who wished to remain anonymous. 

Bailiff Olga Durand plead guilty to a misdemeanor and the felony charges against her were dropped on Tuesday. David Ovalle of the Herald reported here that Durand will pay a $15,000.00 fine. 

From the article:

Miami-Dade police in July 2012 arrested Durand, 53, a popular bailiff who worked in the criminal and family division, after she was caught on surveillance video accepting money from a defendant facing traffic charges.
The man was secretly working with Miami-Dade police. Authorities alleged that Durand also concocted a fake traffic school completion certificate for the man.

Here's our blog post on this sordid mess from July 2012, which explains the whole glop of garbage in detail, including a copy of the arrest warrant. 

See You In Court. 

Read more here: http://www.miamiherald.com/2013/06/25/3469953


Marshall Lee Gore was set for execution at six pm Monday, but the 11th Circuit issued a stay, albeit a brief one, to consider arguments that Gore is too insane to be executed. Only in America.

There will be briefs filed and oral argument before the 11th Circuit this Thursday. If the court declines to allow further argument, the execution could take place soon after unless the U.S. Supreme Court issues a stay. 

Trivia: Name the REGJB prosecutors, defense attorneys, and judges in Gore's two REGJB trials. 

There were two opening statements in the George Zimmerman trial Monday, and the statements highlighted the different styles of the opposing counsel. Prosecutor John Guy got right down to it:
"Good morning.  Fucking punks, these assholes all get away,'" Guy quoted Zimmerman. "These were the words in this grown man's mouth as he followed this boy that he didn't know. Those were his words, not mine."

Defense attorney Don West countered with a "knock-knock" joke, always a risky proposition in a murder case:  "Knock knock. Who's there? George Zimmerman. George Zimmerman who? Good, you're on the jury." 

Retired Justices Sandra Day O'Connor and John Paul Stevens showed up Monday to watch the justices read decisions from the bench.  O'Connor was awaiting the decision in University of Texas v. Nassar, which could have affected her legacy in affirmative action cases, but the court punted and voted 7-1 to return the case to the Circuit Court for further review. 
Litigators and former opponents  Ted Olsen and David Boies were  was also present awaiting a decision in the same-sex marriage case. Alas, no decision was announced. 

There's a lot of law to discuss over the summer, no more basketball to argue about, and a promising Dolphins season to anticipate. 

See you in court. 

Monday, June 24, 2013


Join the club and hop on our bandwagon. It's full of people who have no respect for gutless carpetbaggers. 

First we'll give the Heat their due. They repeated against a very very worthy opponent. They played well and their play shows they deserved to win. Congrats. 

Now the ugly truth: the Heat are populated, starting with their GM Pat Riley, with gutless carpetbaggers who stand for one and only one proposition: if we can't win, we don't want to play. 

Lebron James is the best player of his generation. But don't use the word "great", because that's reserved for Michael Jordan, Larry Bird, Magic Johnson, Willis Reed, John Havlicek, Bill Russell, Wilt Chamberlin; basketball players who all elevated their teams to championships. James had the chance to be great, then he left Cleveland, losing whatever claim he may have ever had to the appellation of "great". 

But James is the perfect star player for this town, because the fans of this town live his ethic: if they can't win, we won't come.

Need proof? Games six.
 The Heat down by five with 23 seconds left. The arena emptied. Tens of thousands of televisions were turned off or the channel was changed. The Miami fans were not willing to support their team, win or lose, just like their star player was not willing to support his home team win or lose. And Cleveland isn't just some team that happened to draft James. James was born in Cleveland. He was raised in the inner city of Cleveland. It's his home town. And then James stabbed his home town in the back because he wasn't great enough to lift his team to win an NBA championship. James disappeared in the one series in which the Cavaliers made it to the finals, and then he just disappeared from town. 

And it's not just Riley and James who don't have the heart to win unless the deck is stacked. Ray Allen played for the Celtics last year and slugged it out with the Heat and lost. And then Allen, in true Miami Heat fashion decided that if he you can't beat em, join em. He belongs on this team and in this town if anyone ever did. 

The Heat will never know the greatness of being an underdog and coming together as a team to win. All they will ever know is being the best team money can buy. Good for them. You can have them. The Heat will never be the 1960 Pirates beating the mighty Yankees in a walk off game 7 home-run; they'll never be the 1969 Miracle Mets- going from worst to first. The Heat will never understand the guts it took for the Hurricanes in 1986 to beat the mighty Oklahoma Sooners in the Orange Bowl, and the Heat will certainly never understand the character, strength and integrity of the 1980 Mens Olympic hockey team beating the invincible Russians and then the technically superior Finnish team in the gold medal game after being down 2-1 at the end of the second period. 

The Heat will always be the right team for this city. A group of fans that flees when all hope seems lost. A group of players that doesn't want to play unless they can be guaranteed a win. 

You love the Heat? 
You can have them. They disgust us. They're everything that is wrong with sports. 

Thursday, June 20, 2013


The 3rd DCA (Motto: "PCA all the way") has fired this warning shot across the bow of trial lawyers in the REGJB: You ignore it at your own peril. 

Faigns v State:

However, we note that comments on the credibility of counsel, such as those 
at issue in this case, are recurring in closing arguments at an alarming rate. We caution counsel for both the prosecution and defense to uphold their professional and ethical obligations and to be mindful of the line clearly established by the courts of this State. See, e.g., Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982); Del Rio v. State, 732 So. 2d 1100 (Fla. 3d DCA 1999). We also entreat the trial courts to be mindful of such misconduct and to respond accordingly with appropriate curative instructions and firm admonishment of counsel. 

As we say in England, "Forewarned is forearmed."

When we last left Broward ASA Howard Scheinberg, he was on the losing end of a Bar Referee's report recommending a one year suspension for his canoodling, incessant texting*, and all around bad conduct with then circuit Judge Ana Gardiner during the time he was prosecuting Omar Loureiro in a first degree murder case before Judge Gardiner. But then, it's Broward, and if you don't have the judge in your back pocket, don't bother showing up for court. 

The Florida Supreme Court has affirmed the decision of the referee, upholding a violation of Bar Rule 4-8.4(d) (A lawyer prosecuting a capital case shall not engage in canoodling, texting, sexting, and /or phone calls with the presiding judge) but upped the suspension from one year to two. The decision is here

While the 3rd DCA reminded us to play nice, the Florida Supreme Court has reminded us not to play too nice. 

And this thought just occurred to us: A prosecutor gets suspended for two years for (more than likely) having sexual relations with a judge. Alex Michaels gets two days jail for telling a prosecutor (allegedly) to have sex with himself.  If the prosecutor in Broward had listened to Alex.....everybody wins!!!

Meanwhile, Alex Michaels did what he does best this week: A NOT GUILTY in a case before Judge Murphy. 

See you in court. 

* 949 cell phone calls and 471 text messages. When did this guy find the time to prepare for trial????

Tuesday, June 18, 2013


Many of you will remember Syd Smith as a lawyer with the Public Defenders office. He then spent some time in private practice before returning to his home in London, England, to battle leukemia. We received word that Syd lost his courageous battle (three rounds of chemo knocked out the cancer but terminally damaged his kidneys and other organs) and has passed away earlier today. 

A reader has had contact with Syd's brother Pete, who has stated that he has plans for a memorial service in Miami in the fall. 

In the meantime we can remember Syd with comments on the blog. 

It hurts when we lose a really good guy who was not only a colleague but a dear friend to many in Miami. 


Several long time readers have emailed us that they are experiencing difficulties when viewing the blog. The problem -we think- is that Google is going out of their way not to play nice with browsers by companies they don't like. For instance Google has now made it nearly impossible for us to view pending comments with our IPhone. 

Please let us know if you are experiencing difficulties. In the meantime you can try clearing the history and cache on your internet browser on a regular basis and that should help. 

David Ovalle is one of many media members reporting that the Judge in the George Zimmerman trial is considering keeping the names of jurors anonymous for six months after the conclusion of the trial. 
Scott Ponce of Holland and Knight was up in Sandford on behalf of the Herald arguing against the Judge's decision. Ponce does a lot of the media motions in Florida. 

YOU HAVE THE RIGHT TO REMAIN SILENT....except when you don't. 
In Salinas v. Texas, the Supreme Court held yesterday that silence during a "pre-custodial" interrogation is admissible as evidence of guilt. Justice Scalia, DOM's great friend to the defense joined Justice Thomas in concurring in the result, giving the plurality opinion of Roberts, Alito and Kennedy the gravitas of law. 

In this "up is down, down is up" world of jurisprudence, in order to invoke the protections of the Fifth Amendment, including the right to remain silent, you must speak up:

Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self- incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self- executing” and that a witness who desires its protection “ ‘must claim it.’ ...Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed.

 Justices Breyer, Ginsburg, Kagan and Sotomayor fought the good fight against the evil empire. 
So remember to advise your clients: in order to remain silent....SPEAK UP. 

See You In Court. 

Monday, June 17, 2013


BREAKING: Chad Johnson, who has been jailed since last week for patting his lawyer's butt in court for doing a good job has been released after telling the Broward Judge that he was sorry and did not mean any disrespect. So the Broward Judge got her pound of flesh. Happy? 

The AP writes what we in the criminal defense field have known for some time: Bite mark identification is unreliable (witch craft) nonsense (sorry Dr. Souviron). The article is here.
Bite mark identification evidence first came into the popular conscience with the prosecution of Ted Bundy in Miami and the testimony of Coral Gables Dentist Dr. Richard Souviron:

Bite mark analysis hit the big time at Bundy's 1979 Florida trial.

Read more here: http://www.miamiherald.com/2013/06/16/3454249_p2/ap-impact-bites-derided-as-unreliable.html#storylink=cpy

On the night Bundy went on a killing spree that left two young women dead and three others seriously wounded, he savagely bit one of the murder victims, Lisa Levy. A Florida forensic dentist, Dr. Richard Souviron, testified at Bundy's murder trial that his unusual, mangled teeth were a match.
Bundy was found guilty and executed. The bite marks were considered the key piece of physical evidence against him...
Then came DNA testing. Beginning in the early 2000s, new evidence set free men serving prison time or awaiting the death penalty largely because of bite mark testimony that later proved faulty.

We The Journalists:
Ever wonder who that guy in the USC shirt, huddled in the back of Judge Thomas's courtroom sipping black coffee and using the wi-fi is? 
Why it's ace Herald crime reporter David Ovalle, and the Society Of Professional Journalists ("going to jail to protect sources since 1972") did an article on our own REGJB crime reporter here. 
David likes black coffee, golf, California, and long walks on the beach. 

BOT: BOT is a DUI diversion program for first offenders. It was started in Orlando, and has since spread to Miami Dade, and now West Palm Beach. One guess which county isn't even considering it? Hint: about 27 miles north of the REGJB. 

Another long hot week in a long hot summer. Stay cool and we'll See You In Court.

Read more here: http://www.miamiherald.com/2013/06/16/3454249_p2/ap-impact-bites-derided-as-unreliable.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/06/16/3454249_p2/ap-impact-bites-derided-as-unreliable.html#storylink=cp

Sunday, June 16, 2013


By now the Justice Building Football Suicide League is a tradition.   Last year saw a record number of players complete for a title so prized, the mere thought of possessing it is enough to make contestants pour over football schedules for months in advance, searching for the slightest edge. 


You've talked about it for years. The mere possibility that such a thing would exist has sent football loving blog readers into a frenzy.  The possibility has now become a reality. 

We are ready to announce, in addition to the beloved suicide pool......

We almost forgot. 


To all our readers who balance a legal career with the most important job in their life: being a dad, today we salute you. 

It's your job to take your son or daughter fishing.  Show them how to bait a hook, and teach them about catch and release. It's your job to oil their first baseball mitt, and to put an arm around them when they strike out to end the game. It's your job to buy them those comic books you read when you were a kid; to sneak them out of the house for an ice cream sundae before dinner, and to talk them about putting down the Ipad, turning off the TV  and reading a book at night. 

For the ten thousand and one things you will do to make a difference in your child's life: from going to the pharmacy at 3am to buy some more cough medicine, to driving their pals to and from the movies, with a stop at McDonalds on the way home, to the countless times you re-arranged your work schedule so you get to the baseball field or basketball court to coach the team, this is your day. 

Enjoy it. 
Happy Father's Day. 

Our pick to win the US Open? Charl Schwartzel. Who are we rooting for? Our favourite golfer since the Golden Bear. Lefty. Phil Mickelson. 

Oh, as to that big announcement? It can wait. Can't overshadow Father's Day you know. 

Friday, June 14, 2013


We'll end the week with a little discovery refresher. 
Scenario: You are hired to represent a defendant on a DUI Manslaughter case. You invoke discovery. Which rule have you invoked? A) 3.220  B) 3.xyz C) The Rule against perpetuities.  (Answer below) *

Having invoked reciprocal discovery, you see that there was a blood sample taken from your client. You retain an ex parte expert, ask for some of the blood sample and your expert conducts tests. 

The state:  A) Quickly files a motion to compel the report of your expert; B) admires your hard work and shakes your hand after court; C) Asks whether your firm is hiring. 

Lets assume the answer is A and the court grants the motion and you quickly file a writ of certiorari with the appellate court. The Appellate court A) Denies the writ and writes that when you invoke reciprocal discovery the report of your private experts must be disclosed; B) Laughs at the circuit court and quickly grants the writ and requires the circuit judge to show cause that  s/he has graduated from an accredited law school; C) Discretely inquires during oral argument whether your firm is hiring. 
As astounding as it sounds, and this is a warning bell to us as defense attorneys, the answer is A. 

The reasoning behind the decision is as follows: 
3.220(1)(A) requires the defense to disclose to the prosecution the witnesses who the defense reasonably expects to call at trial. 
3.220(1)(B)(ii) requires the defense to disclose to the prosecution the names of experts and the results of tests. 
Note that the section on experts is separate and distinct from the section that requires the disclosure of witnesses that the defense "reasonably expects to call" and the plain language of the rule doesn't exempt experts that the defense uses but doesn't expect to call. 

The opinion recognizes the Hobson's choice the decision will create for defendants- if you want to use experts to conduct tests, don't invoke reciprocal discovery. The appellate court's response is "tough toenails". And just so you get prepared, here is the quote the state will use in their motions to compel, over and over:

"Ms. Kidder is not constitutionally entitled to a discovery system that operates only to [her] benefit."

Suddenly arraignments became a little more dicey. Now you have some strategic decisions to make. 

Enjoy your U.S. Open weekend and happy father's day. 

See You In Court. 

*If you have to check that the answer is A, it's high time for some CLE. 

Wednesday, June 12, 2013


Lesson one of legal blogging in Miami: Put Milt Hirsch in a post and the hits on the blog go through the roof.
Last we left Milt Hirsch, Miami's own "Bard of the Bench" he  was safely ensconced in his robes. There was just the nagging issue of his former client Sean Casey. To make a very long story short, Casey was charged with DUI Manslaughter. Milt did a spectacular job and got the blood tests suppressed. The 3rd DCA (in what should have been recognized as a precursor of things to come) reversed the trial judge's order. The case was returned for trial and Mr. Casey fled to Chile where he resided for two years until he was apprehended. Upon return to Miami, Casey, with Hirsch as his counsel, entered a plea and was sentenced to prison.
Casey filed a post conviction motion to set aside his plea. His main contention was that Hirsch and his therapist (recommended by Hirsch- Dr. Michael Rappaport) advised him to flee once the 3rd DCA reversed the suppression of evidence. Prior to fleeing, Casey and his mother surreptitiously taped Hirsch and Rappaport. "The Hirsch Tapes" as they came to be known, ended up in the possession of the SAO (motto: "The tapes are none of your ^%@!$!$~! business"). David S Markus (NOT the blogger) represented Casey on the motion. The court, at the request of the SAO, SEALED the tapes. Markus didn't get access to the tapes, and the tapes were not admitted into evidence. The court denied the motion for relief. The 3rd DCA, without benefit of the tapes, affirmed the denial. Casey filed a pro se motion alleging  fraud. The State filed a motion to seal. Enter Bruce Brugmann, a San Francisco owner of the San Francisco Guardian. He filed a motion to intervene and oppose the motion to seal. The court denied the motion. Brugmann appealed: From Judge Rothenberg's dissent:

On September 17, 2009, Brugmann filed the instant petition for review of the trial court’s order sealing the judicial record. On April 21, 2010, this Court issued an order denying the petition without a written opinion, and on May 6, 2010, Brugmann filed a motion for rehearing, rehearing en banc, and for a written
opinion. The motion for rehearing was granted, and on April 27, 2012, the panel issued a written opinion denying Brugmann’s petition for review of the order sealing the judicial records. Brugmann v. State, 37 Fla. L. Weekly D1041 (Fla. 3d
DCA Apr. 27, 2012). Upon issuance of the written opinion, Brugmann filed a subsequent motion for rehearing en banc. After review of the motion, this Court again granted rehearing; withdrew the April 27, 2012, panel opinion; and a majority of the voting members of this Court denied Brugmann’s petition without
prejudice to seek relief by other means.

In English: The 3rd DCA will not issue any reason for denying Brugmann's petition.

Enter Judge Leslie Rothenberg, friend of the poor, the weak, the oppressed, and champion of open government. She filed a very lengthy (anything over ten pages and we start skimming) dissent, strongly arguing for the release of the tapes. Judges Salter and Ivan Fernandez concurred with Judge Rothenberg's dissent.

What we have here folks, is a very divided 3rd DCA that cannot agree on much in this case. And ain't that fun?

From the peroration of the dissent:

Some of the evidence the successor judge failed to consider in evaluating whether to seal the Hirsch tape is: (1) whether the tape demonstrates that Hirsch gave perjured testimony at the evidentiary hearing; and (2) whether the tape, when
considered with all of the other evidence, supports Casey’s testimony that Hirsch encouraged him to flee the court’s jurisdiction, thereby committing a fraud upon the court at the evidentiary hearing…

Additionally, when ruling on Casey’s motion for relief of judgment, the trial court should have reviewed the tapes to determine if Hirsch and/or Rappaport counseled Casey to commit a crime; Hirsch and/or Rappaport gave perjured testimony; and Hirsch, Rappaport, or the State committed a fraud upon the Court
by falsely representing what was said on the tapes.

Rumpole says: WOW. It's not often we get to use "peroration".
Disclosure: We like Milt Hirsch. And we do not believe for one moment he committed a crime or counseled his client to flee. His reputation earned over many decades as a pre-eminent attorney entitles him to that presumption. And yet....

There is something about this we cannot just abide. Why not release the tapes? Especially if there isn't anything to hide. There is a young man in prison who claims the tapes contain evidence that support his legal arguments and would thus establish a very serious fraud upon the court. Why the rush to seal them? Why won't the circuit court judges hearing his motion listen to them? It is all very...distasteful. One could imagine, in other circumstances, Milt Hirsch as counsel for the accused, championing the release of the tapes and excoriating the government for secrecy, much like Judge Rothenberg has done. This case is bizarre. Down is up. Up is down. Milt Hirsch is on the side of tapes being sealed and kept from a defendant and Judge Rothenberg (to her everlasting credit) is championing giving the defendant a fair hearing and access to evidence.

Very strange.

Tuesday, June 11, 2013


DOM printed part of a remarkable essay from Federal District  Judge Richard Kopf, (Nebraska) who runs a remarkable blog here. 
For us, the more interesting part of the blog post than what DOM ran was Judge Kopf's story of his representation of David Tommy Gene Suggett. After reading about how a convicted killer influenced his sentencing as a federal judge, we have no doubt that Judge Kopf would have never thrown a person in jail for patting his lawyer's butt. Experienced, wise, and temperate judges don't act like publicity seeking spoiled prima donnas. 

The title of Judge Kopf's full blog post is the title to our post as well. 

For my (partial) antidote, I realized that I needed a mental image of a physical object that would evoke a sense of balance.  The image that I settled on derives from a gift given to me by a fellow named David Tommy Gene Suggett.
Tommy Gene got into a bar fight in Cozad, Nebraska when a young Hispanic kid provoked him.  One thing led to another, and Tommy Gene stabbed the kid in the heart about three times.  The young man died, and Tommy Gene was convicted of murder.  Ultimately, he was sentenced to 30 years in prison.
After the trial judge refused to give Tommy Gene relief on the sentencing question, I convinced the Nebraska Supreme Court that the trial judge had been too tough on Tommy Gene when he gave him 30 years in prison.  If you feel the need to read more, see State v. Suggett, 200 Neb. 693, 264 N.W.2d 876 (Neb. 1978) (Although sentence of imprisonment of defendant convicted of second-degree murder was required in view of serious nature of crime, where defendant had no significant criminal record, crime was unplanned and provoked by victim, defendant exhibited willingness to work at honest labor, was not addicted to alcohol or narcotic drugs, and his prison record provided evidence that extended period of incarceration was not required to rehabilitate him, term of imprisonment of 30 years was not warranted and would be reduced by Supreme Court to term of 15 years).
When I represented Tommy Gene, I spent a lot of time with him.  I really got to know him.  I learned that he had been born in Arkansas, that his family had abandoned him at a young age, that he spent a lot of nights sleeping in farm wagons filled with cotton, that he had virtually no education, that he had never been in any real trouble, that he had drifted from Arkansas to Nebraska on the hope of farm work, that all the guards and case managers who dealt with him in the prison thought so much of him that they were willing to sign statements for presentation to the judge expressing their view that Tommy Gene ought to be released from prison, and that he really loved my wife’s cooking.
As for the later point, I needed a lot of time with Tommy Gene.  So, I got him moved to the jail in Dawson County.  In that old jail, situated on the second floor of the Sheriff’s office, there were no firm procedures.  A lawyer could see his client about any time the lawyer wanted.  Moreover, the jailer was a nice guy and I got along with him very well.  He allowed me to bring Tommy Gene meals from our home.  I spent numerous evenings sitting on the floor outside of Tommy Gene’s cell while he ate the meal my wife prepared and we talked about his life and his case.
Anyway, I came to really like Tommy Gene.  While there was no question that he had murdered someone, Tommy Gene was not a bad person.  In fact, save for the small matter of stabbing someone three times in the heart, Tommy Gene was a good person.
When I got the decision of the Supreme Court, I called Tommy Gene who by then had been returned to the  prison in Lincoln.  At first, Tommy Gene didn’t understand the good news.  When I finally was able to get through to him that he would be let go soon, he seemed stunned.  Shortly thereafter, and fairly abruptly, Tommy Gene hung up.
As soon as I got a copy of the opinion, I mailed Tommy Gene a copy and told him in a letter to contact me if there was any delay in his parole.  Some months later, I learned that Tommy Gene had been paroled.  With that, Tommy Gene’s case was no longer the compulsive driver it had earlier become.
I never saw him Tommy Gene again.  And except for what I will describe next, I never heard from him again either.
One day a pretty woman walked into our law office and said she would like to speak to me.  I came out to the counter, and she introduced herself as one of Tommy Gene’s friends.  She said she had something for me from Tommy.   With that, she gave me the leather briefcase that is pictured below.  She told me that Tommy Gene had paid one of the other inmates to make the case for me.   She said that Tommy Gene said, “Thanks.”  With that, she left.
The briefcase sits in my office.  I look it at it before I sentence people.  When I do, I hope for balance.  Sometimes it works.
What a remarkable story from a remarkable man. 
We'd like to know from our robed readers, what do you do for balance before you sentence a defendant?
After many years of experience in court we have come to this conclusion: the best way to avoid a bad sentence is not to lose. 
See You In Court. 

Monday, June 10, 2013


The Judge threw the flag after she caught Chad "ocho cinco" Johnson slapping his lawyer's butt during the plea colloquy. 30 days BCJ. It was Broweird after all.

Here's your slo-mo replay: Ol 85 was taking a plea to a violation of probation. The agreed upon resolution was some additional probation and classes. When the judge asked Johnson if he was happy with his lawyer's services, and Johnson said yes, and the Judge went on to praise Adam Swickle, son of Miami Dade Defense attorney of yesteryear Harvey Swickle, Johnson patted his counsel's derrière.  This pat occurs at 56 seconds of the video. The spectators laughed, the judge threw the flag, and Johnson turned a no-jail plea into 30 days. 

Only in that one county where nothing happens in court with a problem. 
Our view: the judge way overreacted. But then again, she sits in the twilight zone of courts. 

See You in court, where despite their desires, our clients are strictly instructed to keep their hands to themselves. 


Because the Florida Bar mandates generosity:

From Wikipedia:

Altruism is an ethical doctrine  that holds that individuals have a moral obligation to help, serve, or benefit others, if necessary, at the sacrifice of self-interest.

Saturday, June 08, 2013


When we last left Opa Locka Sergeant German Bosque, (see our prior post here)  he was a law enforcement officer known more for his lengthy internal affairs rap sheet and misconduct than for his work as a peace officer. 

                                              (in custody)

Today he is in jail, charged with kidnapping: From the Miami Herald:
Former Opa-locka police Sgt. German “GB” Bosque — who has been jailed four times and has a longer internal affairs rap sheet than any cop in Florida — is back behind bars.

State investigators arrested Bosque, 49, on Friday evening, charging him with kidnapping, battery and tampering with a witness who had tried to file a complaint against Bosque. He faces life in prison if convicted of the kidnapping charge, a first-degree felony.
The Herald article details a career in which Bosque has been terminated and reinstated an astounding five times! (The Random Pixel blog also noted that Bosque had been arrested three times as well, which apparently didn't cause any concern with the Hialeah Opa Locka PD) Bosque is now on termination six, which he was in the process of appealing (natch) when the need for a good criminal lawyer and bondsman interceded. 

ON a completely different note, where did all this rain come from? Didn't the storm pass us Thursday night? 
Stay dry. 


Friday, June 07, 2013


Several PDs are leaving their office this month for good, including new FACDL President Eduardo Pereira, who also sent out an email with this message about weekend jail:

[R]ecent emails have circulated regarding the cancellation of 'Weekend Jail.'  I can report to you that we were in receipt of Director Ryan's memo and that I met with Mr. Ryan along with Chief Judge Soto, Judge Leifman, representatives of the Public Defender's Office, Regional Counsel, and the State Attorney's Office.  All stakeholders involved agreed that Mr. Ryan's concerns were legitimate but that the course of action suggested in his memo should be discussed, rethought and delayed.  We discussed Constitutional issues, statutory requirements and alternative proposals, the strongest being a Corrections run program of weekend work in lieu of overnight jail stays.  To that end, we agreed to meet next week to discuss what options are available and how to transition to a new framework for future clients who would benefit from non-'straight time' sentences, at this time their is no circuit wide prohibition on new weekend jail sentences and current sentences are not being 'cancelled.'  I will report to the membership next week with any developments. 
Judge Ivonne Cuesta (late of the PDs office) is being invested today at twelve noon at the Dade County Courthouse. Judge Cuesta took over for the retired Judge Shelly Schwartz. 

DIVORCE: Family law (yuck) rarely invades the pages of this criminal blog. However, some divorces are more news-blogworthy than others.
In 1698 Peter the Great divorced his wife. Until now, no other sitting Russian leader had dissolved his marriage. Therefore, it is with great sadness that we announce the pending dissolution of marriage between Valdimir Vladimirovich Putin and Lyudmila Aleksandrovna Putin after 30 years. 
                                                 It's over.
Nice weekend coming up.
What's the temperature going to be this weekend? Maybe somewhere between 92-88....HAhahahahahahaha. 

Enjoy it. 

Thursday, June 06, 2013

JUNE 6, 1944

Saving Private Ryan - Omaha Beach

None of us can really imagine the horror of Omaha Beach on June 6, 1944.  Almost six thousand men died securing the beachhead  over the first four days. But by the end of that first day- often called by historians "the day of days" 34,000 Americans led by General Omar Bradley had landed. 
There would be no turning back. Fortress Europe was breached. The Americans had landed to free a continent. 

We'd done it once before. Now we were back.  Ten months later the war in Europe would be over. But between June 1944 and April 1945 there would be many bloody battles, including the Ardennes Forest on Christmas 1944 when paratroopers of the 101st Airborne, most without winter clothing,  marched toward the German army while regular GIs fled in panic. 

There's one simple reason why we can practice law, defend our clients, go to Heat games, worship with the religion of our choice, live our lives as we chose, raise our families as we see fit:

Because a generation of Americans- hundreds of thousands of them, many of them boys off farms from small towns, answered the call.  Remember them today as they rest at Normandy. 

There are 124,905 americans buried in American burial grounds in foreign lands. There's no other country in the world that can come close to matching that total of sacrifice. You can find a name here.

And don't forget to say thank you. 

We're back. See you in court. 

Wednesday, June 05, 2013


(Well, as of May 30th, but we missed it whilst out of town).

After 8 years at the 3rd DCA, Judge Angel Cortinas has resigned to become a partner/shareholder at the Gunster law firm. 

Speaking of our favourite appellate court, Judge Emas wrote here for the court reversing the contempt conviction and six month sentence for the aptly named Emmanuel Charlemagne. 
Judge Stacy Glick was reversed for not affording the defendant the chance to present evidence of mitigation, as required under 3.830. Nice to see "contumacious" making a comeback at the 3rd DCA. 

CHANNEL 10 covers the Florida Bar's harassment investigation of Broward Blogger Bill Gelin:

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Monday, June 03, 2013




Because our humble lead scribe Horace Rumpole is in parts unknown and cannot manage to garner broadband service, we post today the latest in the erosion of our beloved Fourth Amendment from SCOTUS.

To be fair, our fellow blogger, DOM, has the post up on the new case and you can go read his post at http://sdfla.blogspot.com/.  It includes a link to the case, but if you're lazy then go here: http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf

The case is Maryland v. King, and it was decided by a decidedly split 5-4 vote.  But, the five and the four are not whom you thought they might be.  Justice Kennedy wrote the opinion and Justice Scalia wrote the Dissent, and boy what a Dissent it was.  Certainly one worth reading.  Of note, Justice Thomas and Justice Scalia did not vote on the same side here. 


Washington, DC (June 3, 2013) – Today, the U.S. Supreme Court ruled in Maryland v. King (12-207) that “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” (at 28) The 5-4 majority opinion of the Court was delivered by Justice Kennedy and joined by Chief Justice Roberts and Justices Thomas, Alito and Breyer. Justice Scalia filed a dissenting opinion joined by Justices Ginsburg, Sotomayor and Kagan.

In his dissent, Scalia wrote:

"The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations."

And he concluded:

 “ ... I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.”

And in other news:

Big Game Seven at the AAA tonight between the Miami Heat and the Indiana Pacers.  Nothing like a Game Seven and we wish we could be there but we'll have a front row seat watching on our 60" Samsung.  I'm sure Rumpole will have something to say about the results of this game if the Pacers should manage to pull off the game seven upset.  I'm picking the Heat to win and return to a third straight Finals appearance.


We received an email after the game tonight.  Here is what it said:

Summer is here so enjoy the Heat and the rain.  Look at the bright side; at least the traffic should disappear for about the next ten weeks.