EINSTEIN'S DREAMS

Time is too precious.

A life is a moment in a season.

 A life is one snowfall.

A life is one autumn day.

A life is the delicate, rapid edge of a closing door's shadow. 

Einstein's Dreams

Alan Lightman. 

Thanks: A heartwarming Broward story of Thanksgiving:

As a lawyer practicing mostly in Dade County, maybe you are wondering what you should give thanks for? Look no father than twenty seven miles north on I95 to the Broward County Courthouse. On the JAA Broward blog is the story of a lawyer who had an agreed order to allow his client to leave his home on house arrest to eat Thanksgiving dinner with his family and the judge who would not allow the five second hearing on her calendar before the holiday and the JA who would not return phone calls and who would not give the lawyer the name and number of the on duty emergency judge. 

The first thing that popped into our mind after reading this story was....if that's how they treat a local lawyer in Broward, then they really need to put up a sign at the front of the courthouse: "Abandon hope all ye from Miami who enter here."

All that glitters is not gold.....

And nominees for the Federal Bench of the Southern District of Florida should not be bold. 

Don't start measuring the drapes for your new chambers in that big glass building that looks sort of like an upside down boat if you're lucky enough to be nominated to the federal bench. Because even though Senator Harry Reid (D- Nevada) set off a nuke and removed the ability of senators to filibuster judicial nominations, the nomination must still be forwarded to the Senate Judiciary Committee for a vote. The actual piece of paper is a blue slip. And until a Senator such as say,  Marco Rubio (R- Tea Party Bizzaro World) releases the blue slip on the nominee, nothing happens. It's as effective as a filibuster and any senator can place a hold on any nominee, anonymously.  So all the that glitters is indeed not gold. 

The NY Times article is here. 

Feeding America: Before you spend all of next months salary on black Friday junk that commercials have convinced you that you cannot live without, go to Feeding America. Hunger is a problem right here in the supposedly wealthiest nation on earth. You can feed a family for three weeks for less than thirty bucks- we reset our Starbucks card for $50.00 at least once a month. Donate. You will feel good and it's a better way to give thanks than stuffing yourself on leftover turkey or pushing the old lady down in the aisle of Best Buy as you yank the last GT V video game out of her age spotted hands. 

Enjoy the holiday weekend. 

GOLDBACH'S CONJECTURE

What does Rumpole do when not trying and winning cases? 
Well, we read. We write. 

And we try and solve number theory problems. 

Goldbach's Conjecture states that every even integer greater than two can be expressed by the sum of two prime numbers. 

A prime number is a number divisible only by itself and one. 1,3,5,7,11,13,17,19,23....you get the point. 

Goldbach's conjecture states that an even number say 10 can be expressed by the sum of two primes:

7 + 3 =10;  19 +23 =42. Pick any even number. It works.  

For some even integers there can be more than one set of prime numbers. For instance 100= 97 +3;  or 
100= 89 + 11; etc.

Goldach's second conjecture: 
In the margins of Goldbach's letter in which he wrote on June 30, 1742,  Goldbach also wrote that any integer over five can be expressed by the sum of any three prime numbers. 

While we're confident that any test you run will show that the both conjectures work, the conjectures have never been proven. And proof is what drives mathematicians. 

So have at it, but remember that hundreds of the best mathematicians in the world have devoted years of their careers to a mostly fruitless search for a proof. Hint: you need to start at the "prime integer theorem" and go from there. 

It's better than taking a depo on Thanksgiving eve. 

See You In Court in a few weeks. 

RUMPOLE AT REST

NFL WEEK 12

Survivor pool: Three players including Rumpole have picked the Lions, at home, over the Bucs. We are awaiting Lurvey's pick. 

UPDATE: Lurvey picked the Texans. In the 4th quarter of both games, both teams are losing. In the event the Lions and Texans lose, all players will play next week and we will institute a tie breaker, probably calling the score of the MNF game, closest to the actual score wins. 

We are also racing for a plane so we will update the post when we land in .....we are we going again? 
Oh yeah, it's classified. 

If the plane has wi-fi we'll update the post earlier. 

See You In Court after Thanksgiving. 

FRAME 313

This is the Zapruder film synchronized with the dicta belt recording from the motorcycle officer who left his microphone open by mistake. 





  When the presidential limousine emerges into view from the sign on the lower left, Kennedy has already been shot once. You can see his hands go to his throat where there was an exit wound from what has been called the magic bullet.  (The movement of the hands-which look unusual- is most likely a medical phenomenon called "Thorburn's Positon"  which is an involuntary  movement of the hands and arms  in a vertical manner in response to a spinal injury, first noted by a neurologist in the early 19th century I believe.)  If you also look carefully in the lower left, you can see the umbrella open by Umbrella man. 

Long a conspiracy theory mystery, Umbrella man- the man who opened a black umbrella on a warm sunny Dallas day at the moment the president was shot, turned out to be a normal citizen who was, of all things, protesting the appeasement  policy of President Kennedy's father - Joseph P. Kennedy, when he was ambassador to the court of Saint James. The umbrella was to symbolize the Ambassador's support for Prime Minister Neville Chamberlin's appeasement policy. Chamberlin often carried an umbrella. For more on the unusual circumstances of Delay Plaza that day, see John Updike's comment in a 1967 New Yorker article: 

Updike observes that the Umbrella Man “dangles around history’s neck like a fetish.” 

We wonder whether a genuine mystery is being concealed here or whether any similar scrutiny of a minute section of time and space would yield similar strangenesses—gaps, inconsistencies, warps, and bubbles in the surface of circumstance. Perhaps, as with the elements of matter, investigation passes a threshold of common sense and enters a sub-atomic realm where laws are mocked, where persons have the life-span of beta particles and the transparency of neutrinos, and where a rough kind of averaging out must substitute for absolute truth. The truth about those seconds in Dallas is especially elusive; the search for it seems to demonstrate how perilously empiricism verges on magic.

We've thought about this long and hard. We've read at least a dozen books (we highly recommend the re-release of William Manchester's "Death of a President") and we've personally inspected Dealey Plaza on two occasions, once as an unofficial advisor to a documentary being made. 

Oswald killed Kennedy by himself. It hurts that such a small, insignificant failure of a man killed such a great man. But he did. By himself. With a cheap Italian WWII surplus rifle. 

Our favourite book on the assassination is a work of fiction: Stephen King's 11/22/1963. Read it. You'll be glad you did. 

Frame 313 of the Zapruder film is the head/kill shot. 50 years later it still remains perhaps the most disturbing film image of our time. A young man, slain down at the prime of his life. 

For in the final analysis, our most basic common link, is that we all inhabit this small planet, we all breathe the same air, we all cherish our children's futures, and we are all mortal.

John F. Kennedy, Speech at The American University, Washington, D.C., June 10, 1963

NUCLEAR OPTION

The Senate reached DEFCON ONE today and Senate Majority Leader Harry Reid launched an ICBM that nuked the filibuster rule. 

Q: What exactly happened? 

A: Before today, current senate rules required a three-fifths majority, normally sixty votes, to end debate on a bill, nomination, or other proposal. Without 60 votes to end debate on a judicial nomination, the minority party could block a presidential appointment. Both the Democratic caucus and the Republican caucus have used the threat of a filibuster to block the presidential appointments in the past. But the Republicans have taken it to a new level, attempting to block presidential cabinet appointments (for the first time ever, a party tried to block the appointment of a defense secretary) and blocking 4 of Obama's five nominees to the DC Judicial Circuit Court. In contrast the Democrats blocked one of President Bush's five nominees to the same court. 

To launch his missile, the Senate's presiding officer (Sen Harry Reid, D- Nevada) ruled that a simple majority was now necessary to end debate on judicial nominations for all courts except the Supreme Court. 


Of course the MAD (mutually assured destruction) that kept either party from using the nuclear option was that with the country evenly divided the party in majority can quickly become the party in the minority with the inability to block the other party's  particularly offensive judicial  nominees. However, with the Republicans blocking all three Obama nominees to the DC circuit this month, Senator Reid and the Democrats did their best Popeye imitation and said that "they had all that they could stands, and they can't stands no more" and fired their nuke. 

Today history changed. As to the effects, we will have to wait and see. For more on just how the Senate runs, read Robert Caro's masterful "Master of the Senate" which detailed how Lyndon Johnson ran the senate when he was the majority leader. 

Tomorrow: 11/23/1963 and Frame 313. 

WE'LL NEVER CALL A POST NEWS AND NOTES

Congrats to REGJB regular Michael Grieco for his election to the Miami Beach City Council (motto" "send us your tall, your thin, your heroin chic Russian models....").

And Congrats to former Assistant PD Keon Hardemon for being elected to the Miami City Commission (motto: "what corruption?")

Thanksgiving is next week, and that heralds the start of the holiday season and the end of three solid months of trial work (September-November). Anyone going to trial over the holidays? 

E-FILING: Good news is ahead. The people responsible for the Gov dot health website have also been hired to get Dade's e-filing up and running.....

What Rumpole is reading: Double Down: Game Change 2012. Everything you wanted to know about the 2012 Election, from Mitt, to Newt, to Ryan and Obama, and a feisty governor in New Jersey who we may not have heard the last of. 

MEOW: Gotta love the fact that Sal Esposito couldn't get out of jury duty in Boston. Sal is a cat. But despite his person informing the court of his feline status, the court denied a request for Sal to be excused. The story is here.  They'll just need a litter box in the jury box....

We're working on a big brief type project, so forgive the paucity of the post. See You In Starbucks, which keeps us going through these long nights at work. 

ONCE A RAT...

"Once a rat, always a rat" was the quote from ASA Gail Levine in the murder trial of Jason Beckman accused of killing his father. Levine was commenting on the testimony of an inmate that Levine put on the stand to say that the  defendant confessed, and the fact that he had his sentence reduced by one year. 

                                                    (photo from @davidovalle305 twitter)

Sort of an odd statement to come from the prosecution, but the logic behind it is that the state is not marrying themselves to a turncoat. Beckman was convicted on Monday night of first degree murder. Ovalle's Herald article is here. Jurors deliberated two whole hours. Your thoughts on this strategy? 

E-FILING: The county has gotten it's act together. The court system and clerk's office and SAO and PDs are all on board. E-filing will start January 6, 2014. 

Congrats to.....(boy this hurts) Broward County for getting e-filing up and running. No word as to when Miami-Dade will hop on board, but we hear they're close. There are a few last minute hurdles for the Miami-Dade Clerk's office to overcome. They need 1) Computers; 2) Those screens that aren't the orange hue; 3) Better dial-up modems; 3) Those printers that don't use the green and white striped paper; 4) A compu-serve email account through the AOL portal. Welcome to the early 1990's. 

See You In Court. 

HAPPY 8TH ANNIVERSARY TO US

It was a Wednesday, November 8, 2005, and we were a bit bored at work. We didn't wake up intending to become part of the local legal culture, but then when do you really know when a life changing event is about to happen? 

Here's how it all began, 2513 posts, eight years  ago:

Welcome to the Justice Building Blog.

My Name is Horace Rumpole.

We seek comments, rumors, and stories on any and all Miami Justice Building habituates, Judges, Prosecutors, Attorneys, and defendants. While we (the royal we) will not be libelous, and we will not pick on those not able to defend themselves [ insert your favorite judge here] , we love a good story about a Judge or lawyer putting his or her foot in their mouth. A juicy rumor that is not too harmful will also be posted.

Actually in retrospect, not too bad. We managed some humor, to set out what we intended to do, and got in the first of what would be thousands of shots at our favourite target: those who wear the black robe. 

In eight years a lot has changed. We're a bit older, but really just more experienced. Eight years was a good twenty trials or more ago. There weren't Ipads back then, and cell phones weren't that smart, and E-filing was still a dream in Federal Court (and it still is in Miami-Dade County.) Judges and prosecutors and defense attorneys have come and  gone. So have a few very dear friends like Manny Crespo, Rob Pinero, and Sy Gaer. I think the blog came of age the day Judge Crespo passed away. He was the first sitting judge to die while we were blogging and people gathered electronically to share memories before and after the funeral. It's one of the posts we remember most.  Our darkest hour occurred during that horrible week that Judge Pinero lay mortally stricken; we announced his tragic passing too soon. And in that mistake we learned a lesson: we 're not journalists; we run a blog and there is a world of difference. When we walk in that courtroom on the sixth floor and see those pictures of Judge Crespo (hung by Judge Pinero) and then Judge Pinero, we can't help but think of how fleeting life is, and how, as we do our jobs and live our lives, we are just leaving footprints in the sand, by the ocean, quickly washed away.

Even though we run a blog we've also come to learn that we have earned your trust. And trust is a precious thing. We heard one lawyer once tell a young colleague that it took him 25 years to earn his reputation in the REGJB and he never forgot he was always two minutes away from ruining it every time he spoke in court. 

It's been a privilege to be part of your day. And while we acknowledge that we are closer to the end of our career as a lawyer and a blogger than the beginning, we're not done yet. Miami is a fascinating place. We have great lawyers handling challenging cases.  And it's fun to be a part of that. 

And ever the eternal optimist, we arise every day reminding ourself that at any moment some amazingly stupid comment will come from the mouth of one of our judges and we will be there to trumpet the moment. (You didn't think we were going to end without taking a shot at our favourite targets did you?)

So whomever gets the REGJB Judge on their jury panel, write in and tell us how it went. 

See You In Court. 

NFL WEEK 11 2013

The Final Five: The survivor pool has come down to the final five: 

Hailing from parts unknown, the ineffable and mysterious Lucy Lew; the gourmand of hip: Kenny Weisman, the man, the myth, the legend: Dan Lurvey,  bringing a little civility to an unruly group of criminal lawyers, Alan  Kaiser, and your faithful blogger, seeking his second survivor pool title, Rumpole. 

Lucy Lew picks Cincy, as do we, Lurvey growls with the Bears, while Kaiser doesn't believe the Jags are for real and takes the Cardinals, while Weisman, bringing up the rear and glancing at Colby over his shoulder, also goes with the Redbirds over the Jags. Technically speaking, Lurvey has put himself in line to win it all. He's the second player to be in that position this year. The first was...well,  like Paulie who sold out the old man, "won't see him no more."

Here's our picks for Sunday:

The Bengals are finally home after a tough two week road trip. The last time they were home the Bengals lit up the Jets for over 40 points. Cincy -6 over the Browns.

San Diego charges into town to take on our struggling Dolphins. Are the Fins in disarray? Yes. Did they perform horribly on Monday night losing to the Buccaneers? Yup.  Does Rumpole's revert to the mean theory mean that the Dolphins bounce back at home? Absolutely. The bankruptcy courts are full of bettors who went against home dogs. Take the Fins at home +1.5.

Cheaters at Carolina: Fancy pants Brady and his no-name offense come up against a legitimate and surging Carolina defense. Couple the strong Carolina D with some bad weather and we like the under 47. 

The same goes for the Jets at Buffalo. The Bills are a different team at home, and they have a very good defense. The Jets know that their key to winning is keeping Geno Smith out of difficult third and long situations where he tends to put the ball up for grabs. A resurgent Jets running game, a very stingy Bills defense, and some bad weather all lead to an under 41. 

Monday: Happy Anniversary to Us, and a mystery judge settles in as an anonymous juror in the posh REGJB jury pool digs.  

GUARDIAN OF THE REALM

We follow a couple of blogs and here are some things that caught our eye:

MOTIONS IN LIMINE:
From the Hercules and the Umpire Blog , run by Federal District Court Judge Richard Kopf, District Of Nebraska: 
I hate motions in limine. A motion in limine is like a condom. It is intended to stop something before it starts. Thus, lawyers file motions in limine to stop the other party from presenting prejudicial evidence to a jury.
 I came across this response to the prosecution's motion in limine to prohibit the defense from referring to them as "the government" :

Should this Court disagree, and feel inclined to let the parties basically pick their own designations and ban words, then the defense has a few additional suggestions for amending the
speech code. First, the Defendant no longer wants to be called "the Defendant." This rather archaic term of art, obviously has a fairly negative connotation. It unfairly demeans, and
dehumanizes Mr. Donald Powell. The word "defendant" should be banned. At trial, Mr. Powell hereby demands be addressed only by his full name, preceded by the title "Mister." Alternatively,
he may be called simply "the Citizen Accused." This latter title sounds more respectable than the criminal "Defendant." The designation "That innocent man" would also be acceptable...


Moreover, defense counsel does not wish to be referred to as a "lawyer," or a "defense attorney." Those terms are substantially more prejudicial than probative. See Tenn. R. Evid. 403.
Rather, counsel for the Citizen Accused should be referred to primarily as the "Defender of the Innocent." This title seems particularly appropriate, because every Citizen Accused is presumed innocent. Alternatively, counsel would also accept the designation "Guardian of the Realm."
Further, the Citizen Accused humbly requests an appropriate military title for his own representative, to match that of the opposing counsel. Whenever addressed by name, the name
"Captain Justice" will be appropriate. While less impressive than "General," still, the more humble term seems suitable. After all, the Captain represents only a Citizen Accused, whereas
the General represents an entire State.

Along these same lines, even the term "defense" does not sound very likeable. The whole idea of being defensive, comes across to most people as suspicious. So to prevent the jury from
being unfairly misled by this ancient English terminology, the opposition to the Plaintiff hereby names itself "the Resistance." Obviously, this terminology need only extend throughout the
duration of the trial — not to any pre-trial motions. During its heroic struggle against the State, the Resistance goes on the attack, not just the defense.
WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State's motion, as lacking legal basis. Alternatively, the
Citizen Accused moves for an order in limine modifying the speech code as aforementioned, and requiring any other euphemisms and feel-good terms as the Court finds appropriate.

The entire response is here.



The lawyer who drafted and filed that response is the aptly named "Drew Justice". This guy is not just good, he is great.  Isn't this the kind of lawyer you would want fighting for you?  Captain Justice, Guardian of the Realm and Leader of the Resistance has entered the REGJB Rumpole Hall of Fame. 

CLOSING ARGUMENT: DUTY, HONOR, COUNTRY:
On a more serious note is local lawyer Roy Black's comments about closing arguments and the speeches of General Douglas McArthur. In particular, Mr. Black is enamored with General McArthur's famous farewell address to the Corps at West Point:

“The shadows are lengthening for me. The twilight is here. My days of old have vanished, tone and tint. They have gone glimmering through the dreams of things that were. Their memory is one of wondrous beauty, watered by tears, and coaxed and caressed by the smiles of yesterday. I listen vainly, but with thirsty ears, for the witching melody of faint bugles blowing reveille, of far drums beating the long roll. In my dreams I hear again the crash of guns, the rattle of musketry, the strange, mournful mutter of the battlefield.

But in the evening of my memory, always I come back to West Point.

Always there echoes and re-echoes: Duty, Honor, Country.

Mr. Black's blog post is here. And be sure and click on the audio of McArthur's address. And if you're intrigued about the person whom we believe was America's greatest general, then read William Manchester's American Caesar; it is a classic and will convince you that no one was better than McArthur. 

Cool weekend (temperature wise) coming up. See you in court. 

Coming Monday: Which Circuit Judge takes her spot as a juror in the REGJB jury pool? 

BENCH AND BAR MIXER

If you're like us, then the prospect of socializing with a judge ranks right up there with having  an in depth discussion of the congressional committee notes on the fees charged hot dog vendors in state parks.  But for some of you,  the ability to quaff a pint after work with a member of the robed set is not an unpleasant event. 

Therefore, we reluctantly pass on the announcement of an FACDL Bench and Bar mixer tonight, at the semantic-satiated named Restaurant and Bar "Delores, but you can call me Lolita" at 1000 South Miami Avenue. starting at 5:00 pm., or three hours after most judges have called it a day. 


See You In Court, but not anywhere near this unsavory get together. 

ON NOVEMBER 13TH FELIX UNGER WAS ASKED TO REMOVE HIMSELF FROM HIS PLACE OF RESIDENCE...

First of all, yesterday was 11/12/13 for those of you that follow those things. We had a good day, about about you? Next up: next December's 12/13/14. 

In answer to our trivia question yesterday...."On November 13th, Felix Unger was asked to remove himself from his place of residence. That request came from his wife...."
 

In our humble opinion, the best sitcom ever. 

SCOTT ROTHSTEIN FALL OUT CONTINUES:
Yesterday  Federal Judge Robin Rosenbaum (motto: "Atlanta or bust") sentenced Kim Rothstein, wife of legal ponzi-schemer Scott Rothstein and  Bar-tender-cum-socialite to 18 months in prison for her role in attempting to hide swag jewelry from federal investigators.  The sentence seems a bit excessive to us. 

MEGAN FOX
We've done many things in a trial, but introducing a photo of Megan Fox is not one of them. But ASA Gayle Levine did yesterday during a murder trial, as per @Davidovalle305: 

David Ovalle ‏@DavidOvalle30513h

I'm not making this up. State just moved into evidence a photo of Transformers actress Megan Fox to show to jury.

David Ovalle ‏@DavidOvalle30513h

#OnlyInMiami moment: Prosecutor Gail Levine holding up to jurors a photo of actress Megan Fox, entered into evidence, during murder trial.

Longtime purveyors of the Miami Legal blog scene know that if it was a picture of Paris Hilton, then one Miami legal blogger wouldn't have missed it for the world. 

See you in court. 

SYD SMITH CELEBRATION OF LIFE

SYD SMITH: IN MEMORIAM:

Clayton Kaiser and Steven Bustamante and others have emailed us to remind us that there will be a celebration of the life of Sydney Smith this Saturday, November 16, 2013 at the Abbey Brewing Company, 1115 16th Street in Miami Beach, starting at 5pm and lasting until the beer runs out. Syd's brother from England will be present and since this was one of Syd's favourite watering holes, there is general agreement that this is the way Syd would want to be remembered. So stop by on Saturday and hoist a pint to our old departed mate. 

S/HE WOULDN'T RISK THEIR BADGE/CAREER....

Whenever we're confronted by evidence of intentional police or prosecutorial misconduct, one of the first refrains from the judge or the lawyers on the other side is to question why the prosecutor or officer would risk their badge or career to prosecute an innocent man? The question more  highlights  the ignorance of the individual asking the question than it does beg an answer. The reasons why a prosecutor hides exculpatory evidence or an officer lies are as varied as the vast fickleness of human nature. 

More often than not however, it starts with prosecutors and officers making an assumption that an individual is guilty and committing themselves to a course of action that gets harder and harder to unravel as the defense digs in. Eventually personalities come into conflict  and nobody wants to back down and an innocent man or woman goes to prison. You can convince yourself of a lot of things when your judgement is challenged in an adversarial arena.

We don't know that's what happened to Texas prosecutor Ken Anderson (until a few days ago Judge Anderson) when he indicted Michael Morton for the death of his wife Christine in 1986. But what we do know is that Morton was innocent (exonerated after spending 25 years in prison) and that Anderson hid the exculpatory evidence from Morton's defense even after a Judge ordered him to turn it over. Anderson became a Judge in 2002 and his excuse to the Texas Court investigating his misconduct was that he didn't think he had to comply with the Judge's oral order as opposed to a written order. 

Judge Anderson was found to be in contempt of court. He was removed from office, disbarred and sentenced to ten days jail, a $500.00 fine, and 500 hours of community service. 

Is this penalty sufficient punishment for a former prosecutor who intentionally hid exculpatory evidence that sent a man to prison for twenty five years, took him away from his now de facto orphaned young son, and basically ruined Michael Morton's life? 

We think not. 

Anderson deserved to be removed from office, disbarred, and we think a penalty of five years in prison would have been more in line for this type of conduct.  Five years in prison for a crime you did commit is a hell of a lot better than twenty five years in prison for a crime you didn't commit. 

Here is the Innocence Project's posting of the Texas Court's findings on this mess. 

See You In Court, where maybe judges and prosecutors will stop being so willfully blind to the possibility that people on their side of the aisle lie. 


Extra Credit Trivia: We had two historical events this week. Veterans Day 11/11. The next up occurred on 11/13- what is it? 

NFL 2013 WEEK TEN

UPDATE: We told you the worm would turn, it was just a matter of when. Playing the team playing Jacksonville every week was a strategy destined to fail, and today it failed as the Jaguars upset the Titans on the road in Tennessee. Falling out of the pool at week ten  are David O Markus, Peter Sautter and Mark Vargo. Well played gentlemen. Just an unlucky week to bet against the Jags.  Already safe this week are Dan Lurvey, Rumpole, and Lucy Lew. We're down to at least three as Ken Weisman has the Saints sunday night and Alan Kaiser has Tampa Monday night. 

Eight survivors put it on the line this week in the survivor  pool- the deepest this many players have ever gone in our pool. 

We like the Giants along with Lucy Lew.  Peter Sautter. Mark Vargo,  David O Markus are all riding the Jaguar wave and picking the Titans. Query: have you ever considered the odds of a team going 0-16 in the NFL? It's a very long shot. 
Dan Lurvey liked the Dolphins, but switched at the last minute to the Steelers, always a dangerous move in a survivor pool.  Alan Kaiser likes the Bucs to smack the big bullies down. As always, Kenny Weisman brings up the rear and and picked the Saints a few moments before we posted.  Jon Colby, who was a few minutes away from winning it all last week and instead was knocked out,  was standing by to make Weisman's pick for him if he was unavailable. 

No picks today. Just some thoughts on the Dolphins and the NFL. 

The Dolphins have been exposed an outlier in the NFL. A team that will use players regardless of their character. 
Take for instance the incredibly successful NE Patriots and their good-guy image with QB Tom Brady. They would never tolerate a player like Incognito with his bad boy reputation. Oh wait- they drafted  TE Aaron Hernandez, and all he did was probably murder at least one individual, and maybe more. 

Well then take the Super Bowl champion Baltimore Ravens. There is a team that puts character ahead of on field performance. Oh wait- their superstar linebacker Ray Lewis was arrested for accessory to murder for a killing outside of an Atlanta nightclub in 1999. 

Well then take teams like the family owned Cincinnati Bengals and Pittsburgh Steelers. Surely they take pride in using players that live up to the sterling standards of their communities. Oh wait- The Steelers two time super bowl winning QB has been accused of rape. Twice. And that hasn't stopped them from playing Roethlisberger every possible week he was available. And the Bengals have had six players arrested in recent years, led by Adam Pac Man Jones, who has had several arrests including an incident where a person was shot outside of a Las Vegas strip club. 


In fact from 2009-2012 the following teams lead the NFL in players arrested: 
Buccaneers - 14
Vikings - 13
Broncos - 10
Seahawks - 9
Dolphins - 7 
Browns - 7
Chargers - 7


The fact of the matter is that Incognito's disgusting behavior is the norm in the NFL.  This is a league founded on violence and toughness where rookies have to "earn their stripes" and players are not considered men if they look for resolutions to problems that don't start with punching the other guy in the face. 

The NFL is broken. The coaches seek and reward players who are "tough" and "mean".  Players who scare and intimidate others are revered.  You often hear players in baseball or basketball lauded for their intelligence. In football, players are complimented for just their physical attributes, brute strength, and ability to administer punishing blows on the game field.  Oakland Raider safety Jack Tatum, who paralyzed NE Patriot receiver Darryl Stingley for life with a vicious and unnecessary hit in a preseason game published an autobiography with the title "They Call Me Assassin." 

The NFL is a league that thrives on violence and intimidation. And all of a sudden they are "shocked! shocked to find out that there is gambling going on here"* and that players act off the field the way they are paid to act on the field. 

You reap what you sow. 


*quoting Captain Renault in Casablanca. 

WHY ERIC RIVERA CANNOT BE SENTENCED TO LIFE

Can Judge Murphy legally sentence Eric Rivera to life? 

We say no, attorney David Weinstein says yes. We invited him to present his argument, and we have it here, completely unedited.  You decide. 

Mr. Weinstein, as the guest, goes first. 






Rumpole's argument (which isn't really a response since, believe it or not, we didn't read his argument until after we wrote ours.)





That's more than enough law for this blog for one day. 
Enjoy the weekend. 
The survivors in the survivor pool fight on. We lost one last week. 

See You In Court. 

EX PARTE

CANNON THREE, CODE OF JUDICIAL CONDUCT:

(7)A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.....

From the Miami Herald: 

A Miami-Dade judge was set to release from jail a suspected Kendall burglar shot by police after a harrowing high-speed car chase — until Secret Service agents paid a visit to her chambers.

Query: How is this not an ex parte communication? 

The facts, as contained in the Herald Article here: 

Stephen Arnoux was awaiting trial on charges stemming from fleeing from the police (who shot at Arnoux, or in the words of his lawyer Andy Rier, "used him for target practice.")

Rier had successfully argued to have his client released on house arrest, until United States Secret Service agents paid Judge Verde a private visit in her chambers where they told her that the federal government was fixin to indict Arnoux on (*gasp*) identity theft and fraud charges, which caused Judge Verde to change her mind. The Herald quoted Judge Verde as saying this:

“I am alarmed about what I heard,” Verde told his lawyer, saying she was worried Arnoux might leave jail and flee with the money he allegedly stole. “I have a duty to protect this community."

Because the facts are from a Herald article, and possibly in dispute,  we re-printed below a comment from a reader who presents the other side to this. You should read it. But if even remotely true, the facts are disturbing. 

Lets take this slowly. 

"I am alarmed by what I heard."  What the Judge heard was in private, and presumably not under oath. The defense had no notice nor ability to confront and cross examine the witnesses making allegations against the defendant. In other words, a secret "star chamber" proceeding. 

"I have a duty to protect this community."  From what? A person who has not even been formally charged, and even if he was charged, he is presumed innocent. 

We spent some time perusing the Code of Judicial Conduct, and we were unable to find "A Judge has a duty to protect the community where she serves." anywhere in the Code. 

So lets see how our adversarial system of justice has been turned on its head. Now it's the police, the prosecution, and the judge worried about the community, while on the other side is a defense attorney with no impartial person in the middle. 

In how many other circumstances can Judges now fulfill their new  duty to protect the community? Lets count a few: 

"The police acted illegally and normally the evidence would be suppressed, but that would prevent the successful prosecution, and I have a duty to protect the community, so the motion is denied." 

"My duty to protect the community supersedes my duty to protect the constitutions of Florida and the United States, so the motion to reduce bond....or the motion for judgment of acquittal.....or the motion to suppress ....is denied."

Has anybody been to an investiture lately? Just when did they change the oath of office for a judge from preserving, protecting and defending  the constitution to protecting the community? 

[Update: But an alert reader replied to our argument:

 Anonymous said...

While I agree with you Rump that a judge does not have a "duty to protect the community," (Maybe that duty belongs to the police and the prosecutors? Go figure), Fla. Stat. 903.046(e),  Purpose of and criteria for bail determination- does provide that a judge should consider the nature and probability of danger which the defendant's release poses to the community.

Thursday, November 07, 2013 7:33:00 AM

 ]

And finally, just how does the U.S Secret Service get the ability to see a judge, in private, about a pending case? Just how does the Judge allow such a private chat in light of Cannon Three? 

Is the 3rd DCA now just for defendants? If the state gets a good decision, the defendant appeals. If the state gets an adverse decision they just send some cops or feds into chambers: "Judge, you didn't hear the whole story in open court. Let us tell you all the bad stuff we think the defendant did...."  Dick Cheney may approve of such a procedure, but at the moment, the constitution frowns on such conduct. 

In fact, lets just streamline the whole process. Do away with open court. Let the state prepare a set of facts and send them privately to the judge. Then have the witnesses and cops go into chambers and tell the judge  in their own words what happened, and then the judge can just take the bench, and in fulfillment of his/her duty to protect the community just tell the defense what the verdict and sentence is. Things would happen much quicker. And it would be a whole lot easier for judges to fulfill their god given responsibility of protecting the community then having to deal with this whole bill of rights mumbo jumbo. 

Right? 

See You In Court, or whatever is left of court, because lately all the real action is in chambers. 

UPDATE: We received this comment with the other side of the story: 

 Anonymous said...

Do any of you even know what happened? Agents were in court looking for the defendant. Corrections brought the agents back to chambers. Verde asked them what they wanted and they advised her that the defendant was going to be indicted. She called the attorneys immediately and placed the matter back on calendar. She asked Rier if he wanted a recusal and advised that she would grant his motion. He said NO. The case is on calender on Tuesday for ruling. You are all so quick to accuse a anyone of misconduct. Ask Rier how he feels about Verde. He said in open court that she was extremely fair and would not want any other judge to handle this case.

Wednesday, November 06, 2013 6:49:00 PM

 

For those of you tuning in for David Weinstein's argument on the Rivera sentencing we were a bit pre-occupied lately and then this jumped up, but we'll get to it shortly. 

Read more here: http://www.miamiherald.com/2013/11/05/3733325/after-visit-from-federal-agents.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/11/05/3733325/after-visit-from-federal-agents.html#storylink=cpy

CAN ERIC RIVERA BE SENTENCED TO LIFE?

On Tuesday, a Miami jury convicted Eric Rivera of second degree murder without a firearm and armed burglary with a battery in the death of football star Sean Taylor. 

A few hours later a bit of a contretemps broke out on Twitter where we averred that Rivera could not be sentenced to life in prison in that he was a juvenile at the time of the crime. On the other side of the argument was attorney David S Weinstein (@davidsweinstein) who also was giving that opinion to the media. 

We treated Mr. Weinstein, a former assistant state attorney and assistant united states attorney  (now in private practice) poorly in our tweets. For that we apologize. Mr. Weinstein justly has a sterling reputation for the work he did as a state and federal prosecutor. To that end, we invited Mr. Weinstein to provide us with his written argument in support of his position. We will provide that argument- unedited,  and our argument that Rivera cannot be sentenced to life, shortly.  Feel free to weigh in before then. 

See You In Court. 

2500

BREAKING: A COMPROMISE VERDICT IN SEAN TAYLOR TRIAL: The jury found Eric Rivera guilty of second degree murder WITHOUT A FIREARM and Guilty of Burglary with a Battery WITH A FIREARM. The practical affect of this on the sentencing of the defendant is nil. As a juvenile at the time of the crime he was not eligible for either the death penalty or life in prison. But having been convicted of a life felony (armed burglary with a battery) the judge can issue a very lengthy sentence which is what the prosecution was seeking. (+40 years?)
Congratulations to ASA Reid Ruben who handled this case from its inception, and was assisted at trial with Ray Arojo and Penny Brill. Well done. The family of Sean Taylor must be gratified to finally have some closure in the case, although they might naturally feel somewhat confused or disturbed by the fact that the evidence and theory of the case was that Rivera was the shooter, and as to the murder charge, the jury did not make that finding.

Very quietly last week we published our 2,500th blog post. 

It has been an extremely gratifying endeavor to be allowed to write for our friends and colleagues and be a voice for a courthouse and a profession that has taken up more than half our life. 
We have tried to be fair and we have tried to be conscious that in this age of Google and internet searches, seemingly innocuous comments on a small blog can have far ranging consequences. 
For those of you who click in every few days, thank you for reading. For those of you who take it a step further and write a comment or two every now and then, thank you for participating, because it is your voice that in every way makes this blog of the life and times of the lawyers and judges and bailiffs and JAs and court reporters and correctional officers  and cases and clients of Richard E Gerstein Justice Building a successful one. 

H.R. 

Deliberations continue today in State v. Eric Rivera. Rivera is accused of being the triggerman in the deadly home invasion The  burglary and murder of football star Sean Taylor.  The jury threw commentators into a tizzy on Friday by asking about the differences in terms that constitute manslaughter and second degree murder. Earlier in the day Friday the defense had turned down the opportunity to request a mistrial when a West Statute book was located in the jury room. 

The first Monday in November begins a three week dash until the Thanksgiving holiday which is then followed by the December holidays, which means if you have a case to be tried, now is the time until next year. 

On Friday we received this request from Judge Wolfson about the death of long time bailiff  Tony Escobar. 

Dear Rumpole - please post as soon as possible. 

It is with great sadness that I inform you of the passing of my devoted bailiff and dear friend Francisco "Tony" Escobar on October 30, 2013 after a battle with cancer. Tony served as my bailiff for the last 3+ years, and prior to that with Judges Norman Gerstein and Judy Kreeger. In total, Tony served nearly 28 years in our court system. There will be a Celebration of Life in honor of Francisco “Tony” Escobar on Tuesday, November 5, 2013 at 6:30 P.M. at Miami Lakes Baptist Church located at 6250 Miami Lakes Drive East, Miami Lakes, FL 33014. Tony’s favorite color was red, so please feel free to wear red in his honor.
In addition, please feel free to forward this information, as Tony impacted the lives of generations of people in the legal community.
If you have any questions, please call Janet Samper at (786) 412-0974.

Thank you,
Andrea Wolfson

See you in court. 

NFL WEEK 9

How about dem....Dolphins!!! Three games have ended on a safety in the history of the NFL. Can you name them? 
We didn't pick the Fins, but their victory makes perfect sense in our regression to the mean theory of NFL betting: the Fins came in with a 4 game losing streak and the Bengals, on the road, had a 4 game winning streak, three of those games by last second field goals. The Bengals were due for a loss, the Fins due for a win. 


SURVIVOR POOL:  Is this week we get a winner? Everyone has picked the Cowboys over the visiting Vikes except Colby who likes the Pack (and can please stop thanking us in every email for running the pool). Colby has put himself into a position to win this week. 

Football pool 2013 week nine from Justicebuilding

PICKS:
It's a difficult week, but we will try our best:

Colts -2.5 over struggling Texans. Colts have recently played this game well on the road and they are the better team. 

Ravens -2.5 at struggling Browns. It's time for the Ravens to begin to make their playoff run. It's time for the Browns to get serious about landing the number one pick next year. 

Bills +4.5 at home over the Chiefs. The Bills are playing tough, even with a third string QB. Their Defense is keeping them in games and they are a good home dog. Also take the under 43. 

If you're playing the J..E...T...S cycle, one week up, one week down, this is their up week. So take them at home +6.5 over the Saints. 

DAYS OF FIRE

Much to our surprise, the jury in the Sean Taylor murder case did not reach a verdict Friday and deliberations will resume Monday.  More on trial strategy below. 

What is Rumpole Reading? 
"Days Of Fire: Bush and Cheney In The White House".  The events where you thought Bush was dead wrong, now seem less certain. The events where Bush triumphed now seem less clear. A thorough and well researched book, supported by interviews with the players closest to the President and Vice-President. Well worth the time. The chapter on the day of 9/11 reads like a thriller. 

WHY CLIENT'S SHOULD NOT TESTIFY. 
Rumpole's fourth rule of jury trials has been the source of much discussion in the comments section, not to mention blistering emails. 
First, there are of course circumstances where you client must testify; self defense being the most obvious. Those are not the cases we are talking about. 

A defendant enters a trial with very few advantages. Prospective jurors walk into the courtroom wondering just what your client did to get there? No amount of questioning on the presumption of innocence and burden of proof changes that basic human emotion. The best you can do is to select jurors who acknowledge that emotion and can agree to put it aside, and even that is an iffy proposition at best. 
As the case proceeds, the next advantage the defense has is that the jurors are expecting a lot from the prosecution. They think the crime scene detective and their labs are superbly trained and able to extract evidence from the most innocuous crime scenes. They believe the detectives are smart and highly trained (depo tip- ask every cop and detective how far they got in school. 95% of them do not have a college degree.).  As the evidence unfolds and the defense is able to show that the police did a fair job at best, made some mistakes, made some crucial assumptions that might not be true, overlooked possible explanations for seemingly inculpatory evidence, the concept of reasonable doubt and burden of proof begins to become more concrete for many jurors. 
Now you get into the non-professional witnesses. Who has a grudge? Who has a reason to lie? Who hasn't seen what they thought they saw? A defense based on poor police work and unsure witnesses begins to emerge. The state rests. 

The Defense's Case: 
Are there alibi witnesses? Are there witnesses that were present that contradict what the strongest state witnesses testified to? Are there expert witnesses who contradict the work of the police and the theory of the prosecution? All of these types of witnesses, along with the problems already exposed during the state's case in chief can lead to an acquittal. 
Then the defendant testifies. 
All the work you have done up until that point goes out the door. 
The burden of proof dissolves. The standard of proof beyond a reasonable doubt disappears.
The verdict now comes down to one and only one point: Was the defendant believable? If the jury doesn't believe your client, then no matter how weak the case, no matter how many problems you have exposed with the proof, a significant segment of the jurors will enter the jury room with one thought: "can you believe that story the defendant told?" 

In our experience, the trade off is not worth it. Your client is not a professional witness. The jury is not likely to forgive his or her inability to answer a crucial question. In the Sean Taylor case, the issue arose over whether the defendant Eric Rivera was wearing a certain type of sneaker linked to the crime. On the stand he denied it. On cross, prosecutor Reid Ruben asked Rivera where the sneakers he claimed he was wearing were? Rivera, not prepared for the question, stumbled and looked to his defense attorneys. 
It was a moment considered significant by most court observers. 

Consider for a moment the unlikely scenario that Rivera is completely innocent. That the prosecution represents a tragic error in judgment. A moment like Rivera's hesitation and stumbling is seen by the jury as a defendant being caught in a lie. To a juror, that means he is guilty. They fixate on that moment, and ignore the rest of the evidence, no matter how weak it is. Because for a juror, the possibility that an innocent defendant may be caught in a lie is inconceivable, and yet we know that many of our clients who are innocent or less culpable, lie to the police and to us for reasons unrelated to the case. 

In our experience, the trade offs are not worth it. It is an extremely dangerous and highly risky move to have your client testify. You should almost never do it. 

Enjoy your weekend.