Thursday, October 31, 2013


Update: The jury will be sent home today at 4pm to allow those that are parents of children to do some trick or treating. Jury deliberations will resume Friday at 9am. The jury today watched the videotaped statement of the defendant that is the center of the defense in this case. 

The jury in the case of Eric Rivera, accused of shooting Sean Taylor, started deliberations Wednesday afternoon. The jury went home around 7pm and will resume deliberations around 9 AM today. As soon as we hear about a verdict, we will try and post it. 

Sexual Intercourse defined: 
The life of an appellate judge can sometimes be boring. Deciding whether summary judgement was appropriate in a mortgage foreclosure case, or reviewing the award of attorneys fees, can quickly become routine and boring. 
And then there is the case of State v. Debaun, wherein judges Shepherd, Wells and Lagoa found themselves confronted with whether the term "sexual intercourse" as used in 384.24 includes activity beyond the penetration of a female sexual organ with the male genitalia. 384.24 makes it unlawful for an individual who is HIV positive and knows it to have sexual intercourse with another individual without first informing them of their status. Judge Miller, the trial court Judge in Monroe County, relying on the decision in LAP v State, 62 So.3d 683 (Fla. 2nd DCA 2011), dismissed the charges in Debaun because the sexual activity was between two men and LAP defined sexual intercourse as sexual contact between male and female genitalia. 

But Masters and Johnson  Shepherd, Wells and Lagoa, in a fairly detailed discussion of both statutory construction and sexual conduct/activity/positions etc., found that, at least in Miami and the Keys for now, sexual intercourse is all that jelly and a whole bunch of jam. In other words, for the purposes of the statute, if two people can think of it, the statute covers their conduct:

In short, because the purpose of Chapter 384 is to prevent the spread of sexually transmissible diseases,
many of which are transmitted by sexual contact other than vaginal penetration by a penis, it makes no sense to interpret the only act prohibited—sexual intercourse—as including only penetration of the vagina by the penis. Such a result would be absurd.

Well, don't we all feel better now that the issue has been settled? 

We will post an update when there is a verdict. 

The rallying cry of all baseball teams except your world champion Boston Redsox. As the last Cardinal struck out in the top of the ninth last night, the 2014 baseball season was beginning. Like new  flowers, the melt of the icy snowcap, spring unearths the hope of baseball fans everywhere. This morning, with the 2013 baseball season over, fans were looking at lineups, arguing about whether that rookie flamethrower in the minors was ready, and even long suffering Cub fans like Judge Milt Hirsch were taking comfort in the fact that today, the promise of "next year" was one day closer. 

See you in court. 

Wednesday, October 30, 2013


The defendant Eric Rivera took the witness stand in his own defense yesterday, and it wasn't pretty. He was subjected to an effective and withering cross examination by ASA Reid Ruben. The defendant had to admit his prior testimony at a motion to suppress that his confession was truthful; he repeated every question Ruben asked him; and at a crucial juncture over the whereabout of the shoes he claims he was wearing (as opposed to the shoes he admitted wearing which were linked to the crime scene) he had no answer and looked to his defense attorney for help. 

Rumpole's Fourth Rule of jury trials: Never, ever, ever, put your client on the witness stand.  

Closing arguments are set for 1pm. The jury will be instructed after arguments conclude and we will probably get a verdict tomorrow. 

See you in court. 

Tuesday, October 29, 2013


Something about this story seems very familiar.....

Texas district Judge Elizabeth E. Coker  (pictured above in her chambers in happier times) is stepping down from the bench after being caught engaging in misconduct.  A whistleblower revealed that Corker was sending text messages to prosecutors with suggestions on questions to ask in court in order to secure a conviction.  Coker was also accused of suggesting that a witness review a videotaped interview he gave to law enforcement to refresh his memory and rehabilitate his testimony and of discussing legal issues pertinent to the case "in an unsuccessful effort to assist the State (to) obtain a guilty verdict in the case."
The defendant ended up being acquitted of a felony charge of injury to a child.The Houston Chronicle article is  here y'all. (H/T to an alert Texas reader). 

SEAN TAYLOR CASE: The prosecution rested Monday and the defense started their case, calling other individuals who were in the car with Eric Rivera when it was stopped and Rivera "voluntarily" decided to go to FDLE to confess. The defense also called the Defendant's father who testified about his putative attempts to located his son while he was in custody  was voluntarily confessing. The big question is whether the defendant will testify?  Either way, the case should conclude this week. 
One thing's for certain: Judge Murphy is not texting Reid Ruben questions to ask on cross. 

See you in court. 

Monday, October 28, 2013


BREAKING: After calling the medical examiner, the prosecution rested Monday morning in the trial of Eric Rivera who is accused of firing the gun that killed Sean Taylor. The defense will present a case this afternoon. Herald Reporter David Ovalle has watched the whole trial and keeps tweeting that he doesn't see how the defense lives up to the promises they made to the jury in opening without calling the defendant.  There isn't a better trial lawyer in the Dade SAO than Reid Ruben and he has lived with this case since the beginning. The defense had better be careful. The cross will not be pretty. 

Miami Dade Office Vicki Thomas was called to a Publix in South Dade last week where she encountered a woman stealing a shopping cart of $300.00 worth of groceries. Officer Thomas, a 23 year veteran of the force and grandmother of three issued the woman a PTA for theft, and then, with the knowledge that the defendant was a young mother of three and that her children were hungry and her boyfriend had just lost his job, Officer Thomas went on a quick shopping spree and purchased a $100.00 worth of groceries to tide the family over until the defendant started her new job as a receptionist. The Herald article is here. 

In our field we often trade stories of police officers that are of a less than flattering nature. But Officer Vicki Thomas did a great thing for which she deserves recognition far and beyond this simple blog. Well done Officer Thomas. Well done indeed. 

More texts between our lawyer "Lenny" and his sarcastic secretary "Zoe". 

Saturday, October 26, 2013


It's  H A L L O W E E N weekend, so we decided to post the scariest picture we could find:


Under 51 Giants at Eagles; and in full confidence of our regression to the mean philosophy, Lions -3 over Cowboys. KC -7 over Cleveland- the Browns are just a different team without Hoyer at QB. And if you're playing the one week up/one week down J...E...T....S...., this is their down week and they are getting six at Cincy. And yet, the Bengals keep winning by last second field goals, so the six looks juicy. 

We'll update this post with the survivor picks for Sunday. 49er's at Jax and Saints at home over Bills look like the popular picks but we say this: on any given Sunday any professional football team can win in the NFL, and that includes your Jacksonville Jaguars. 

Go confidently in the direction of your dreams. Live the life you imagined. 
Henry David Thoreau.

Coming Monday: Pay It Forward. 

Friday, October 25, 2013


It takes a lot to turn down a plea offer of probation when facing decades in prison. 
It takes courage and intestinal fortitude of another magnitude to turn down such a plea offer ana go to trial in Broward County, where punishing a defendant for going to trial isn't just a natural result, it's considered a sport  for the judges and prosecutors who work in Broward. They lurk in the shadows up there, like a Lion in the tall grass, just waiting to pounce on the unsuspecting lawyer/client foolish enough to go to trial. 

But credit and congratulations are due to David O Markus and Bill Barzee who defended a client on multiple charges of aggravated battery and on Thursday were rewarded with a Not Guilty on all counts. Two very sweet words. The Sun Sentinel Article is here. 

While David and Bill are superb lawyers, neither of them are old enough to remember the good old days in Broward when your client was rewarded with an acquittal with (we are not making this up) a revocation of their bond, and being remanded to custody, ostensibly to check for open warrants.  It happened to us, more than once. And the dialogue went something like this "The jury sir, having found you not guilty, I will adjudicate you not guilty. Congratulations. Your lawyer did a great job. The sheriff is directed to take the defendant into custody for processing. Have a nice day." 

Eventually, Broward paid a few million dollars in a class action for incarcerating individuals who had just been acquitted (even when you read it, it's hard to believe they actually did it), which just caused a group of judges to revoke your client's bond the day before trial. And on and on it goes. Anyway, a hearty Well Done Mr. Markus and Mr. Barzee. Well Done Indeed!

Sean Taylor Murder Trial: Herald Ace David Ovalle has been tweeting all week the trial of Eric Rivera, the alleged shooter of Sean Taylor. There is no trial today and the rumor is the trial should wrap up next week.  Here's a tweet from this week:

Lawyers getting snippy w/ each other over witness list. "Excuse me, Lee County," prosecutor Reid Rubin sniped. Defense hails from Ft. Myers.

First cold day of the year arrives today. Enjoy a beautiful fall weekend. See You In Court. 

Wednesday, October 23, 2013

3300 NW 27th AVENUE



Longtime practitioners would immediately recognize the first address. Very few would recognize the second. Put the two addresses side by side, then assign the names of the buildings to those addresses, and one can easily deduce what is more important to the leaders in our community - our children or the wealthiest among us.

The first address is the location of the Dade County Juvenile Center Courthouse, and anyone that has ever set foot on the property knows the sad fact that that building is the outhouse of government edifices in our community. The courthouse is undersized, dilapidated, and an eyesore to our justice system.

The second address is the location of Marlins Park, the $650,000,000 retractable roofed ballpark built for owner, Jeffrey Loria, who is estimated to be worth more than a half billion dollars.

At the Juvenile Courthouse, walk into any courtroom and Judges, prosecutors, defense attorneys, Guardian ad Litems, and social service providers are hashing out issues of child abuse and child neglect. Some parents are quarreling while others are weeping. Armed guards flank a shackled father with a violent history. The discussion encompasses parents’ drug tests, depression and mental illness.

That’s what happens when children are harmed and the state has to intervene.

Eight judges hear 20,000 delinquency and dependency cases a year in the nine courtrooms of the two-story Juvenile Justice Center Courthouse.

Finally, though, after years of talking about building a new courthouse to replace the Juvenile Justice Center, sometime in 2014, the County will open a new building called the "Children's Courthouse". That building is a 14-story, 375,000-square-foot courthouse that will be located in downtown Miami at 155 NW Third St.

According to County officials, the modern design of the new courthouse is meant to inspire reverence and awe, demand respect and instill pride while sustaining the multicultural values surrounding children in Miami-Dade County’s justice system. The lower floors are open and airy, with secure areas on the upper floors for offices.

"We wanted it to be child-friendly and functional and have all the necessary agencies for parents and children to get the services that they need," said Circuit Court Judge and project planner Lester Langer.

Five established artists are creating monumental works for the building through the county’s Art in Public Places program.

Massachusetts-based artist Mike Mandel is designing mosaic tile murals of diverse Miami families. The imagery in his murals aims to minimize the stressful nature of the legal proceedings within the building.

And now that building has a name.


Yesterday, the Miami Herald ran a story that you can read about here.

Judge Gelber, who is 94 years old, was appointed to the bench in 1974. Although he retired from the bench in 1990 at age 70, he still sits as a Senior Judge in the Family and Child Support Divisions.   Gelber fought in WW II, served as a prosecutor, was Mayor of Miami Beach, and dedicated most of his judicial career in the Juvenile Division.

Judge Gladstone, himself 83 years old, began his service as a Circuit Court Judge in 1972.   He served 32 years in the Juvenile Division.

Congratulations to two well deserving leaders in our community and in our justice system who gave so much of their time during their careers on the bench to care for the children that live among us.

And let's hope that this symbol of justice is just the first step to our elected officials paying more attention to the future of our community, our children, and a little less time concentrating on our millionaire baseball players and billionaire owners.



Tuesday, October 22, 2013


Attached is the close-out memo of the SAO which dropped the DUI charges against former Miami Heat star Alonzo Mourning's wife. 
We'll leave it to the DUI mavens to debate the particulars of the case. This is way outside of our milieu.
The question is whether this case, with conflicting evidence at best, was treated like the hundreds (thousands?) of other DUIs that were similarly situated? Over the past decades we've tried a few DUIs to jury with facts much worse than this for the state and  the schlepper ASA in court always had the same mournful song:"My supervisor won't let me do anything other than try the case." So, is this case different? A more reasonable officer? A new attitude at the SAO? 

Monday, October 21, 2013


"From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."
Gideon v. Wainwright (1963)

Dear colleagues,

Yesterday I met with FACDL-Miami's 'limited registry task force' to discuss our next steps in the fight against the government's efforts to institutionalize ineffective assistance of counsel.  We talked about fundamental rights, procedures, plans of action and bottom lines.  I could not help but think of the above quote and the reality that the financial limits imposed on attorneys by thelimited registry effectively forces a poor man charged with a crime to face his accuser with something far worse than no attorney: one who is either unwilling or unable to actually defend him.  Fifty years after Gideon, the legislature has created a system that intentionally or otherwise, operates to ensure that effective assistance, in most cases, is impossible.   It rewards attorneys who will not provide meaningful assistance and worse still, it ensures that those who would are unable to do so.  

Some of you have asked whether our efforts have resulted in potentially greater rewards for those who would not stand with us when we refused to join the limited registry; the short answer is yes.  In a perfect world, after our victory, each member of the limited registry would transfer back to the general registry. In this, the real world, our recommendation for those of you who havestood firm is this: join the limited registry on Monday.  Use the surrender stipulation that JAC signed as your sword and shield.   We are encouraging FACDL Miami members to join and to demand compensation above the cap each and every time you deserve it as dictated by your time, efforts, and ethics.  Accept cases and provide the meaningful representation that you, as a defense attorney have sworn to deliver to all of your clients.  When you find a case that isn't complex or unusual or extraordinary, accept the flat fee.  In every other case, file for what the JAC has stipulated Makemson demands: actual effective representation of every defendant and fair compensation for their attorney, even in limited registry cases.  

Everyone at FACDL is keenly aware of the economic situation that each of you has dealt with during the last year.  We, along with all those who believe in the vital role of the defense attorney, appreciate the sacrifice that has been made for the greater good.  As long as the limited registry exists, we pledge to continue working toward its dismantling even if protecting the ideals we hold dear comes at a financial cost.  For now, we hope that you will join us in diluting the systemic flaws of the limited registry by ensuring that every defendant stands equal before the law, something that will never happen without a quality attorney by his side who demands to be compensated for protecting his client and in doing so, the Constitution.

As always, if you have any questions, comments, suggestions, or if you would like to help in fighting the limited registry at the next level, please feel free to contact me directly.

Best regards,

Eddie Pereira
President FACDL-Miami

Saturday, October 19, 2013


On we roll in the survivor pool, a stubborn group of ten players, desperately hoping every week that  the Jaguars play a team they haven't yet picked.

On Monday Night, the Vikings,  with new QB Josh Freeman, take on the winless Giants. And while Freeman was the problem in Tampa, he will be the cure in NY/NJ. Take the Gints -3.5 at home to get off the schneid.

On Sunday night Peyton Manning returns to Indy. Coming off a lackluster performance against the Jags last week, Manning has stayed quiet while the Colts owner has taken shots at him all week long, wondering out loud how the Colts made the playoffs 11 years in a row with Manning but managed to "only" win one Super Bowl. You want to answer that Dan Marino? Manning doesn't have two off weeks in a row this season. Take the Broncos -6.5 at Indy. 

Seattle/Arizona over 41 looks right (whoops, that was what we meant to post Thursday) Cowboys/Eagles- these games have a rich history of going way under, so play the under 53, and we like the Eagles -Vick - 3 at home over the Cowboys. They're just a better team with out Vick. 
And finally, the J...E...T...S  are only a 3.5 dog at home against the visiting Bradys. The Jets are up and down every week and after a lackluster performance last week, look for Geno Smith to keep it close against the Cheaters. Take the 3.5. 

UPDATE: The line between good and great is thin. The line between good and bad in the NFL is also thin. If there is one team that has crossed over that line repeatedly, disappointing its fans, confounding the experts, and losing games it should win, it has been the San Diego Chargers.  That is why we are eschewing the points (+7) and taking the money line +280. You're getting almost 3-1 on your money on a home dog. A nice score like that buys you dinner at Joes. The Bolts fold on the road and the Jags pick up a win. 

Bum Phillips passed away on Saturday at the age of 90.  The coach of the Houston Oilers in their hey-day of the late 1970's doesn't get the credit he deserves. He used the 3-4 on defense way before it was popular. His QB's were gunslingers (Dan Pastorini and then an old Ken Stabler) and he knew his players. In pre-season he had his players do a mile run. Earl Cambell, the big bruising running back could only make it a half a mile. When asked about it, Bum said "Well, when it's 3rd and a mile, I won't give him the ball."  Our favourite quote about him was one he said about Don Shula and Bear Bryant: "He can take his'uns and beat your'uns, and he can take your'uns and beat his'uns." 
Phillips Oilers often were the second best team in the NFL. The problem was they played in a division with the best team in the NFL at the time: The Steelers. You want a rivarly? Go watch some  Steeler/Oiler games circa 1975-1980. You won't see a harder hitting, better played series of games. 

Coming Monday: Once you beat em, join em. 

Friday, October 18, 2013



And your newest Judge on the 3rd DCA is EDWIN A. SCALES.

This was not the first time that Scales was a finalist for an open seat on the 3rd.  Scales is 47 years old and he has been a member of The Florida Bar since 1991.  He has a practice that concentrates on commercial and appellate litigation with an office in Key West, Florida and he has also been Of Counsel to Gray Robinson for the past ten years. 

He is also General Counsel for the Florida Citrus Commission, Vice-Chair of the Florida Keys Community College Board, and Vice Chair of the Florida Commission on Ethics.

He has been a member of the Florida Bar Board of Governors since 2005, and he also serves on the Communication, Legislation, Media & Communications Law, and Program Evaluation Committees.

Scales is also a Florida Supreme Court certified Mediator.

Scales served from 2000-2005 on the Federal JNC, and in 2009, he was appointed by Gov. Crist to the JNC for the 16th Judicial Circuit.  He was reappointed by Gov. Scott and continues to serve on that Commission.  He also served from 2001-2005 on the Key West City Commission.

Scales is a "Double-Gator" having attended both undergrad and law school at the University of Florida.  Governor Bob Martinez appointed Scales, at the age of 21, as the Student Representative to the State Board of Regents.  He also served as Student Body President at UF.

Scales was chosen from a list of six finalists that included Judge Jorge Cueto, John Greco, Judge Fleur Lobree, Judge Jose Rodriguez, and Eduardo Sanchez.

Congratulations and good luck to Judges Scales.


Wednesday, October 16, 2013


It's a story about a government acting irresponsibly and its representatives acting stubbornly and in violation of the law. 
The federal government shutdown? 
We speak of the Limited Registry, and FACDL Super lawyers Michelle Estlund, Jude "The Hammer" Faccidomo, Carmen Vizcaino and Roy Wasson,  have put a stake in its head as it slithered through the mud like some parasitic slug feasting on the carcass of Gideon v. Wainwright 372 U.S. 335 (1963), and the Due Process Clause. 

Recall that the State of Florida decided that in the scheme of due process and criminal justice, the role of the defense attorney was nearly valueless. To that end the State enacted a payment scheme wherein attorneys (having sold their seemingly worthless "Vichy -stained-souls") signed a contract to "defend" clients at rates so ridiculously low that the top fee of $2,000.00 was reserved for murder cases. To be eligible for this "windfall", the attorney had to sign a contract agreeing to "never ever ever ever" seek compensation above the cap. 

Of course no lawyer can defend a client at such rates. All a lawyer can do is meet the client, shake their hand, convey a plea offer and then stand next to them and nod solemnly as they take part in the farce of a plea colloquy in which they pretend that if the client had so decided, they would have investigated the case, taken depositions, subpoenaed witnesses, and gone to trial. In reality these lawyers were and are nothing more than overpaid stock boys, hauling the bodies of their clients on to a criminal courthouse conveyor belt that runs to the state prison. 

Confronted with the law, see, Makemson v. Martin County, 491 So.2d 1109 (Fla. 1986) the State lawyers waived the white flag and entered into the below stipulation, effectively killing the limited registry. 

For those lawyers to whom taking a stand for a principle at personal cost is an anathema to their very being (you know who I am talking about- the type of lawyer who wouldn't have defended Rosa Parks; the type of yellow coward who would be the first to turn in their neighbors when the storm troopers knocked on their door) and who have in fact joined Vichy France/The State of Florida and signed up for the Limited Registry-it is these lawyers who will unfortunately benefit the most from the work of the unpaid FACDL lawyers of whom these limited registry collaborators are unworthy to sharpen their pencils, much less be members of the same Bar. 

Such is the nature of the law in general, and criminal defense in particular, when the very best work, done by the very best lawyers, benefits the very worst among us. 

See You In Court. 


Florida executed another inmate Tuesday.  William Happ was executed for the 1986 murder of a young woman he met by happenstance at a convenience store in Crystal River. Here is the AP story. 

No Bond:
On Tuesday, Judge Colodny denied bond for Derek Medina, the man accused of killing his wife and then posting about it on Facebook. So far his prediction on Facebook that he was headed to prison for life or execution seems a pretty good one.
If you insist on wasting time, you can watch his confession. 

Tuesday, October 15, 2013


Six long years after the tragic Thanksgiving weekend murder of UM/Washington Redskins star football player Sean Taylor, the trial of the alleged shooter begins today before Judge Murphy.  ASA Reid Ruben for the State, some (Florida) west coast lawyers for the defense(after about four or five changes in defense counsel over the years.) Many people don't known that Taylor's Father is the Chief of Police for Florida City. The Herald article is here. Several other defendants await trial after this case concludes. 


        (Photo courtesy of Blog contributor Michael Catalano, Esq.) 

The distinguished gentleman on the left (Carl Maztal, Esq. ) was admitted to the Bar in 1974. The Sean Connery look-a-like on the right (Ben Daniel, Esq) trained legions of State ASAs before wrapping up his career with the Feds (everyone's entitled to one mistake.) Daniel was admitted to the Bar in 1971. 

The Numbers:
They have 81 years of legal experience between them. 
There are more judges in the REGJB who were NOT born when these men were sworn into the bar, then were born. 

In 1971 The Dow's high was 950 and the low was 790. Federal spending was 210.17 billion and the total national debt was 408.2 billion. The average cost of a new home was $28,300.00.  A stamp was .06 cents; gas was .36 cents; a dozen eggs were .53 cents and a gallon of milk was $1.18. 

The Colts beat the Cowboys 16-13 in the Super Bowl on January 17, 1971 and Frazier beat Ali in their first meeting in the Garden in NYC in the Fight of the Century.  Walt Disney World opened in Orlando, Florida on October 1, and later that month Nixon nominated Lewis Powell and William Rhenquist to the Supreme Court.  And Ray Tomlinson sent the first ARP Anet email between host computers ( a few minutes later in his in box he received a solicitation from a Nigerian banker asking to split $16,800,000.00 in unclaimed funds). 

The point of all of this is that there is something very valuable in the legal field that Messrs. Maztal and Daniels possess. It's not in any legal books, and you don't get it automatically when the governor calls or when you win an election because you have the right last name. 

It's called perspective.  Perspective is not experience, it is infinitely more valuable, and you can only get it over time. 

See You In Court. 

Sunday, October 13, 2013


We went a very average (for us) 5-1 in our picks last week. Ho hum. 
And then there were ten: In the Survivor Pool the NY Jets (they of the much better defense then anyone gave them credit for)  upset of the Falcons took out a large chunk of the playing field, while the rest of us rode the Rams over the hapless Jags. This week, the picks are more varied, with many players already having picked the Broncos who play the Jags at home. You may note that Messrs. Lurvey and Weisman like to play it close and email their picks at the last moment. Do not doubt that we ensure their picks are in before the game begins. This week Sautter and Vargo hopped on the Bears in the early game and have a ten day rest until they're up again. Nice pick. 

Our Picks: 

Over 41 Steelers at Jets looks juicy;  Give the 6 and take Cincy at Buffalo; Give the 5 and take the Cowboys at home over the Redskins; Over 41 San Fran/Arizona. 

And now the line everyone wants to know about: Broncos/Jaguars, which opened at 28 and is anywhere from 26 to 28. Fact: the last four teams who were plus 20 have won or covered.  And it's tempting to take the points here, but, having Peyton and Welker on our fantasy team (3-2, win last week) we've watched the Broncos closely, and they are a very, very good football team. They have weaknesses, but they are few, mostly because they have the best football player in the last twenty years to put on a uniform. Manning takes over a game. He sniffs out the opposing team's plans, exploits the weakness, and puts them away. It's easy to envision the Broncos going up quickly, say 14-0, then 17-3 at half. A quick TD in the 3rd quarter makes it 24-3, and then it's a ball game. The Denver Defense has a lot to answer for for last week's performance in Dallas. Jacksonville is just what the doctor ordered. Take the Broncos, lay the points, Oh Doctor!

See You In Court Tuesday.

Friday, October 11, 2013


A little Friday trivia to start your happy hour/weekend (where do people go for happy hour these days anyway? We mean since the Marine Bar was closed and the Alibi Lounge was knocked down.)

What 1980's hit movie filmed a sequence of a person being thrown off the balcony of this Coconut Grove Condo? Hint: it wasn't Jaws (which was a 1970 movie anyway.)

Bond for Juveniles in Life Felony cases:
The Florida Supreme Court has decided in Treacy v. Lamberti,  SC12-647, a case of first impression, that pursuant to the US Supreme Court's decision Graham, since juveniles can no longer be sentenced to life in prison (disappointing the ambitions of prosecutors and judges throughout our state), juveniles are now entitled to bond on charges that would otherwise be non-bondable:

First, we reject the State’s assertion that Treacy may be sentenced to life imprisonment based on prospective legislation creating an opportunity for parole. The security of Constitutional rights, especially those involving individual liberty, is not a matter of legislative grace. Second, we adopt a strict construction of the plain language of the Florida Constitution and determine that because Treacy cannot be sentenced to life imprisonment, he cannot be charged with “an offense punishable by life imprisonment” under current Florida law. Accordingly, we quash the decision of the Fourth District.  

COURTS ARE CLOSED MONDAY FOR COLUMBUS DAY- but we understand that the PDs and SAO and RC are open. That stinks.
Enjoy your fall weekend.

Wednesday, October 09, 2013


Pop quiz: what if anything is wrong with this Miranda warning?

All right, you know, because we’re here in the states now,
before you can – I can talk to you about this, I have to tell
you, about your rights. You have the right to remain silent;
anything you say can be used against you; you have the
right to an attorney; if you can’t afford one, one will be
appointed for you at no charge. All right?

Think about it for a moment while we blog about something else. 

RECUSAL: The prosecution wants the Judge in Boston in the Aaron Hernandez murder prosecution to recuse herself because, get this, the prosecutor and the judge squabbled in a prior murder case in 2010 (a case the prosecutor won no less!). The ESPN article is here.  If that was the standard, half the lawyers in the REGJB wouldn't have any judges to try cases in front of. 
We say- go put on your trial suit, shake off the judge wagging her finger at you and go try your case cry baby. 

The Miranda warning was....BAD- necessitating a new trial in the ill fated State v. Omar Loureiro case, which is now set for a third re-trial. If you want to know the prior problems, just google "Judge Ana Gardiner" for a good read. 
In this iteration, the conviction was reversed based on the admission of the challenged confession because: 

As can be gleaned from the language of Miranda, the point of the third warning is to advise the suspect of his or her right to “the presence of an attorney.” It is clear from the warnings given to Loureiro before his second confession that h e was advised “you have the right to an attorney,” but he was told nothing about his right to the presence of an attorney before or during questioning.

The decision is here. 

One problem that we see, as the opinion points out:

The State conceded in closing argument that the only evidence directly linking Loureiro to J.L.’s death was his confession to law enforcement. 

Hmmm....what to do....what to do? 

See You In Court. 

Tuesday, October 08, 2013



There's a lot to do here. You can splash in the surf, eat like a king, dance until dawn, sail a boat at sunset. According to the 2010 census, there's 2,496,435 people who call this city home. And when one of them dies, that's when I go to work; I write a blog. 

The story you are about to read is true. The names have not been changed. The defendant is presumed innocent. 

On October 7, 2013, an Arthur Hearing was held at the Richard E. Gerstein Justice Building. This is how it unfolded as  tweeted by Herald reporter David Ovalle:

David Ovalle@DavidOvalle305
In court for missing body Arthur hearing. Actually this is my first hearing of any substance in Judge Hendon's. Det. Juan Segovia up first

David Ovalle 
Det. Segovia says Maqueira, laughing and mocking, constantly challenged them to show him Raquel's body.

David Ovalle 
Alex Michaels bellowing re: why MDPD never records most interviews (this case, post-sworn statement). Judge calmly overrules objection

David Ovalle 

Det. Segovia says Maqueira, laughing and mocking, constantly challenged them to show him Raquel's body.
David Ovalle 
For leverage in interrogation, Det. Segovia showed Maqueira that his daughter was in office talking to cops. "He looked like he saw a ghost"

David Ovalle
Alex Michaels objected. "Not sure the detective is familiar with ghosts ... what they look like," Michaels said.

David Ovalle 
Prosecutor asks about unnamed jailhouse informant.  "You can call him Rat No. 1," Alex Michaels says. Judge shakes head, says nothing

David Ovalle 
Alex Michaels just went ballistic, pointing out Maqueira's phone located at scene of vanishing, not neccesarily defendant himself

David Ovalle
To explain why his phone pinged in area of estranged wife's disappearance, Maqueira claimed that he gave it to her as an impromptu gift. 

This is one of those rare, but not unheard of cases of a murder prosecution without a body. The arthur hearing didn't conclude on Monday.

See You In Court. 

Monday, October 07, 2013


Oyez Oyez. Today is the first Monday in October. Hang on to your civil rights and keep a firm grip on the fourth and fifth amendments because friends, we're in a for a rough ride criminal defense wise. 

Update: Here is the NY Times Article about this year's docket.

On the docket for arguments this week, we have some campaign finance coming your way with an hour of oral argument on Tuesday. What's that you say? The Federal Government is shut down? Not the Supreme Court, which is open for business regardless of what congress does or says. 

Because it's Monday, and because we expect the news out of Washington DC to continue to be depressing, legal and otherwise, we continue with our series of Texts from a lawyer, with today's installment a series of texts between Lenny and his secretary Zoe: 

FOOTBALL: No one dropped out of the survivor pool Sunday, although DOM squeaked by with the Broncos with a late Romo INT and a Bronco FG. A few players have the Falcons over the Jets tonight so there's still a chance we lose some players. Otherwise this might be the first weekend in a long time with this many players and no one going out. 
Picks wise- going into the late Sunday night game we were 5 for 5, giving you the winners in Bengals over the cheaters, Colts over Seahawks, Ravens over Fins plus the over 43 in the game, and the Cowboys at +7 who lost by three. In our picks we gave you the outright winners of two games where the undefeated teams (cheaters and Seahawks)  lost.  Our $ystem work$. 

Sunday, October 06, 2013

NFL 2013 WEEK 5

Four undefeated teams play today. The last time four undefeated teams went into week five of an NFL season? Glad you asked. It was October 13, 1968- forty five years ago. This week all four undefeated teams are on the road. 

In our survivor pool the sweet 16 remain, while 15 watch from the sidelines and rue their choices this year while sadly muttering  "wait till next year."  The hot picks this  week are the Falcons over the Jets  and the Rams over the visiting and winless Jaguars.

Fantasy Football wise, last week it was the matchup of the two blog owners as Rumpole at  2-1 took on DOM at 1-2. When the dust settled, our two teams led the league in scoring for the week, but DOM, with the help of the Dolphins on MNF squeaked out a 129-126 win.

Today, before we get into our picks, recall at the beginning of the season we told you we liked the USA over Somalia, on the road, -13.  

Today, this is a tough week. Will this be the week the Cowboys player above themselves and the Broncos play below themselves? The boys are a TD home dog.  Are the Chargers, who (sorry David Ovalle) have disappointed for so many years-now the real deal?  Can the Bengals bounce back at home as a one point dog against the visiting cheaters? 
Can the Fins bounce back at home and are the Ravens as bad as they seemed against the Bills? 

OK, applying out revert to the mean theory of picking ( (c) Rumpole, 2010) take the Cowboys at home +7 to keep it close against the best team in football- the Broncos (WIN). Take the Ravens +3 (WIN) and the over 43  (WIN) in Miami, but watch the weather on the over- it may rain. Take the Bengals +1 (WIN) at home to bounce back and give the cheaters their first loss and take the Colts +2 (WIN)  at home to bounce back over the very tough defense of the Seahawks.  Take the Chargers -5 1/2 over the Raiders.  For fun and profit only. 

It's a beautiful fall weekend, and unless you're on a deadline with the 11th circuit like we are, get out and enjoy South Florida. 

*Generally speaking teams play close to .500 football. The good teams play 3-4 games above .500 and the bad teams play .500 or 3-4 games below. Today for instance, it is reasonable to expect that the Ravens will not turn the ball over 5 times like they did last week. It also means that the cowboys are due for a win and the Broncos due for if not a loss, a close game. The point is to pick the teams and go against the obvious short trend (their performance the prior week) and bet on the longer trend of the quality of the team. A team that has a great season - say 13-3- still loses three games and the key is to pick the game after the loss and see if the point spread is off based on the team's loss the prior week.
FYI- identifying the Browns as better than the rest of the public thought they were has made us more money in three weeks than we made all of last year.

Friday, October 04, 2013


The first Monday in October is coming up, and we know what that means: The corn chowder chili soup is back on the menu at Au Bon Pain in the REGJB. And the Supreme Court is back in session too. 

Just read the blog and we'll tell you all you need to know about the Supremes. Prediction: Justice Kennedy will be the swing vote on an important case. 
Prediction: Justice Thomas will write at least one 8-1 dissent. 
Prediction: Justice Scalia will write some acerbic comment that gets some publicity. 

How do we know all this will happen? It's just a gift. 

Here's a disturbing case about a Tampa police sergeant fabricating a DUI arrest of a lawyer to help another lawyer during a big law suit. The article is here.  But what do prosecutors/judges say when we accuse a police officer of fabricating evidence?   "Why would this office put his salary and career on the line for some arrest of a defendant he doesn't know?" 
Because cops sometimes lie and we don't always know the reasons motivating them. That's why. 

There was gunfire near the Capital on Thursday in Washington, DC. But that had absolutely nothing to do with the number of handguns in the US. The disturbed woman tried to ram her car through the White house gates. The Republican response: Presidents should be armed in the future. It's also fun to note that the Capital police responded to the incident, which probably has a whole lot of Tea Party politicians pissed off, because as we all know, they think government should be smaller and do less for its citizens. 

A beautiful fall weekend is upon us. Get out and enjoy it. See you in court Monday. 

Wednesday, October 02, 2013





Texts From a Lawyer:

Tuesday, October 01, 2013


UPDATE: AT 6:12 PM the State of Florida took the life of Marshall Lee Gore. 

Rumpole, this is the most insightful post ever.

I was Marshall Gore's trial judge on a number of cases in the early 1990's. I really got to know him -- or at least who he wanted me to know. He is a very intelligent man. He is obviously a sociopath, but on the other hand, a very interesting and personable man to have spoken to over the months of his case.

In later years, I bumped into him on a jail tour that I was leading at the DCJ. He was in a safety isolation cell. His tiny dark cell was stuffed with legal pads and his thoughts and writings on an appeal. He was protesting that the jail was failing to serve him Kosher meals and that he was Jewish. In fact, the jail was serving him ham, bacon and everything that they could get that would piss him off.

One of my best friends is a world renowned psychiatrist who had interviewed Gore and felt that he had genius level IQ. I always thought of what a waste of life. but for genetics, environmental factors and "mommy daddy" issues, Gore could have been a charming successful charismatic human being.

Even though I presided over Death Penalty cases ... I am now adamantly against the Death Penalty. It is medieval, barbaric and not reflective of what our society should be.

Executing Marshall Gore tonight will be a notch in the Governor's belt for reelection, but it will be a sad night for civilized humanity. If the public could see the horrible inhumane conditions that Gore has lived in, mostly in isolation with limited hygiene and much darkness, they would say that life in prison under these conditions is punishment accomplished.

Marshall Gore is most certainly guilty of the charges which will lead to his lethal injection in a few hours. I will be sad for his victims, their families, for our society ... and also for Marshall Lee Gore.
Tuesday, October 01, 2013 4:58:00 PM

Item: Marshall Lee Gore is scheduled to be executed tonight for crimes for which he was convicted in Miami Dade. 

Callins v. Collins,  510 U.S. 141, 114 S.Ct. 1127, 1130  (1994) (Blackmun, J, dissenting)
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years, I have endeavored - indeed, I have struggled - along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. 1Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually 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. The basic question - does the system accurately and consistently determine which defendants "deserve" to die? - cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e.g., Arave v. Creech, ___ U.S. ___ (1993), relevant mitigating evidence to be disregarded, see, e.g., Johnson v. Texas, ___ U.S. ___ (1993), and vital judicial review to be blocked, see, e.g., Coleman v. Thompson, 501 U.S. ___ (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. 

For Whom the Bell Tolls 
John Donne. 

No man is an island, 
Entire of itself. 
Each is a piece of the continent, 
A part of the main. 
If a clod be washed away by the sea, 
Europe is the less. 
As well as if a promontory were. 
As well as if a manner of thine own 
Or of thine friend's were. 
Each man's death diminishes me, 
For I am involved in mankind. 
Therefore, send not to know 
For whom the bell tolls, 
It tolls for thee.