Thursday, May 15, 2014


Ms. Harrell was arrested for DUI and resisting without violence. Things went downhill from there. She won the battle (acquitted of DUI) but lost the war (convicted of resisting without violence).  The conviction was upheld on appeal by an appellate panel of the 11th Judicial Circuit. 

The opinion cites to John Marshall's closing argument in Commonwealth v. Randolph,  cites approvingly to the common law circumstantial evidence rule, and includes an old lawyer's ditty on circumstantial evidence.  All clues which would lead the  "aporetic"* reader to conclude s/he was holding in her hands nothing less than a Judge Milt Hirsch appellate opinion. 

The opinion is well worth a read and indeed a careful study for its elucidation of the common law circumstantial evidence rule (something every trial lawyer should know), a careful recitation of what lawyers need to do and say during the all important motions for judgment of acquittal, and an excellent primer on the difference between direct evidence and circumstantial evidence. 

With commendable lawyerly afflatus, appellate counsel for Ms. Harrell seek to divide and conquer. They bifurcate the crime into its actus reus and its mens rea, then argue that the latter was
not proven otherwise than circumstantially.
But this bifurcation has no place in the application of the common-law circumstantial evidence rule...

Notable in this opinion is the concurrence of Judge Rebull in which he very clearly signals his distaste for the use of the common law circumstantial evidence jury instruction. Rebull is not alone in his antipathy towards the instruction; he cites to a Florida Supreme Court decision calling the instruction "confusing, and incorrect" and "unnecessary." 

A warning: read the penultimate paragraph of the opinion, in which the court opines that rarely if ever, should a court grant a motion for a judgment of acquittal based on application of the common law circumstantial evidence case. The court likens the successful application of the law as to the existence of a quark- we know it exists, but it hasn't yet been seen. This is an ominous conclusion for the defense bar. It is supposedly supported by logic. See FN5, which we believe will become infamous in its erroneous application of circuitous logic, or more precisely:  a dangerous informal fallacy  Such conclusions (a court should never grant a motion for judgment of acquittal in a purely circumstantial evidence case) have no place in this, or any opinion. 

Lesson from all of this falderal? Thus Spake Zarathustra, A book For None and All:

O man, take care!
What does the deep midnight declare?
"I was asleep—
From a deep dream I woke and swear:—
The world is deep,
Deeper than day had been aware.
Deep is its woe—
Joy—deeper yet than agony:
Woe implores: Go!
But all joy wants eternity—
Wants deep, wants deep eternity

Thus Spake Hirsch and Rebull in Harrell v. State. An opinion for None and All. 

*Borrowed, without permission, from the opinion. The term describes a person who has doubt, is puzzled,  or is otherwise at a loss...


Anonymous said...

Vintage Hirsch. Overbroad, riddled with irrelevancies, and more concerned with showing off his vocabulary than addressing the legal issues.

Heat fan said...


I hope you "took it to the bank" with your prediction of the Nets in Six. You and Comrade Mikhail can now take a slow train to Siberia while the HEAT continue their annual ride through the Eastern Conference and now are only one playoff series win away from their fourth straight appearance in THE FINALS.

For the Nets, on the other hand, more than $180 million in salary and luxury tax was supposed to bring them a championship. Instead, billionaire owner Mikhail Prokhorov got only a trip to the second round as his return on a massive investment.

Rumpole, you are the lucky one. Prokhorov lost $180 million on his bet taking it to the bank; you only lost, what, about a G?

Enjoy watching us in Round Three. I'll be at the AAA watching my HEAT.


Rumpole said...

Heat blah blah blah game six blah blah blah three peat blah blah. You want to sit in an overpriced seat and watch a team with no heart play and whine and complain? Be my guest. Waste of a life.

Anonymous said...

The part that bothers me is the reference to moving for a joa only when it can be done in good faith. If that could be done days after the case, fine, but the appellate rules if preservation require it immediately.

Anonymous said...


Anonymous said...

The Heat have not heart andthey cry, whine and complain. Really? Were we watching the same series, Rump. There is no greater sight in sports (other than watching Jets fans leave Dolphin Stadium after losing to the Fins) than Paul Pierce crying and complaining after losing a game to the Heat. But then again I have to admit I like watching Garnett just leave the court without any semblance of sportsmanship. What fun.

By the way, rumor has it that Ray Allen has decided that when he is elected to the NBA Hall of Fame, it will not be his Bucks or Celtics jersey he will hang, but his Heat jersey. The fans of Boston can thank Pierce and Garnett for that. Time for both of them to hang it up. Even with all the help and the money spent to help them beat the Heat, they still can't and never will.

Rumpole said...

Yeah we let that pass. But the judge is wrong. You waive so much on appeal if you don't make the motion. I cannot imagine a case where the lawyer wouldn't make the motion.

Anonymous said...

It is of concern particularly in light of wild man Judge K in Palm Beach and his latest escapades.

Anonymous said...

How about "PCA Affirmed", Milt? Don't give them fodder for further appeal.

Rumpole said...

The reason why you see Jets fans leaving Dolphin stadium is that Miami is a bunch of front running phonies and the fans have no loyalty to the team. So Dolphin stadium is half empty because the fans have abandoned the team because they don't win the super bowl every year. And when the Heat crash and crumple to the Pacers or Spurs, Judge Colodny will be sitting by her lonesome next year cheering her team on in a 3/4 empty arena.

Anonymous said...

Love the opinion but, it was a total waste of time.

I had to stop a few times and look up some of the works.

I agree. That client was guilty of resisting.

Anonymous said...

Hold all horses here.

I looked up the DUI. It was a Fred Saraphin case. The PD represented the client. The two witnesses were Officer Closius and Slimak.

They're horrible cops. They'd bust their own mother for DUI even if she had one drink.

Juries hate those two guys. They're stiff, rude, offensive and hard to believe. Ask anyone who does DUI cases.

Hey Milt, nice of you to beat up some young APD right out of law school.

Anonymous said...

We have better things to do down here than spend our time and money watching a professional sports team lose.

You f'ing New Yorkers are so fake - you think that if you are not there, you must be a fair weather fan...

Yo Tony! Yo...Frankie...

Yo, Jim ain't coming to the games now that the J-E-T-S suck suck suck....thant freakin guy is a fair weather fan...f'ing guy....we should bop him on the f'ing head.

[flash to Jim on Beach, in Miami]

Man, if I only knew how nice it was down in Miami, I would've come here years ago, rather than sitting through Jets loses all winter long.

Can't wait to catch Gang Green when they play here this winter.

[flash to Jim walking away with super hot Latina (who could care less about American Football), to go home and screw]

[Jim looks over his shoulder, winks and yells - go JETS!, while winter game is played on TV in background]

[fade to black]

Rumpole said...

1:31: Milt didn't beat anyone up. Criticize him where appropriate but he was beyond respectful to the appellate counsel, He went out of his way to praise them and it was both high praise and worthy praise. My issue with the opinion is not the outcome. He appears to have nailed it. It was not circumstantial evidence. My issue is how he went out of his way to bury the ability of the defense to get a JOA. I have some thoughts on that which I will share tomorrow or next week.

as to you 2:07. It has nothing to do with being a new yorker, which I am not. The cubs sell out. The Texas teams have good attendance. Miami is full of ex new yorkers and they are all fair weather fans.

Anonymous said...

Rumpole, please no more tom foolery, no more ballyhoo!

Anonymous said...

In the words of Late and Great Neil (God) Rogers, that opinion is Ponderous, Man, just Freakin' Ponderous !

Anonymous said...

Wow! So I hear that the Captain and Rumpole were both at the League of Prosecutors event.

Anyone decipher that one?

Anonymous said...

Most of what Milt writes a colossal waste of time, unless you get joy out of reading someone's tribute to their own narcissism.

Anonymous said...

Milt is smarter than any of us. Again, he has proved it.

Anonymous said...

I think that opinion is a waste of time.

Clearly, that was not a circumstantial evidence case.

Should have been a simple PCA.

Anonymous said...

Milt is destined to replace Justice Cardozo as the "master of the literary opinion".

Kissimmee Kid said...

Nobody in Florida will ever read this. We don't consider cases out of your District Court precedent, why would a Circuit Court case be of any use to a lawyer?

Anonymous said...

This case was a perfect candidate for a PCA. Why then, would Mr. C.J. Hirsch decide to write such a long-ass opinion with fancy and flatulent words such as "tautology" and "afflatus"? Was he trying to sneak in his own particular interpretation of a rule of law or was he just trying to show the rest of the world that his use in the opinion of such fancy words can be construed as circumstantial evidence of his knowledgge as to their meanings?

Anonymous said...

Wow! So I hear that the Captain and Rumpole were both at the League of Prosecutors event.

Anyone decipher that one? Interesting.

Anonymous said...

Phil you can run and act like you do not see me, but I know you see me and are freaking out. You still plan to use a body bag on me or you need the police report to remind you?

Anonymous said...

Not sure if the "League of Prosecutors" lack Cojones or are very bright. They hardly made any endorsement.

League of Prosecutors'

2014 Judicial Endorsements

County Court

Group 19 - Rachel Dooley

Group 36 - Nuria Saenz

Circuit Court

Group 16 - No endorsement*

Group 26 - Rodney "Rod" Smith

Group 27 - No endorsement*

Group 58 - No endorsement*

Group 67 - Fleur Lobree

Group 70 - No endorsement*

* no candidate in this group received a plurality vote

Rumor has it that these were the fake reactions:

Bocanegra: Did I even attend? I had a dream I stuttered at UM.

Judge Schwartz: WTF! I am the Judge. Has this ever happened before? I like to rule!

Kobitz: Crap! Did I send them a check? Should have place a tracker on each envelop. I should have mentioned that I am rich and the infamous Captain!

Steve: That's why money should not make one a judicial candidate. My dedication and experience helped me tonight. I got this.

Zilber: I listed everyone except Vickie Mendez. WTF! I thought everyone liked me. What did you say? They know I am an elitist. FU!

Oscar: I got this. Need to wrestle endorsements from Martin and remind everyone he is a puñeta of a guy. With a robe he will be like the a Man of Balls of Steel!

Mavel: I should have ran against Shapiro. I need to drop out and save my sanctity. I think they know I am broke. I'll be crushed. SMH!

Reinier DLP:

DLP: These are not the judicial droids you're looking for.
LOP: These are not the judicial droids we're looking for.
DLP: He can go about his business and endorse no one.
LOP: He can go about his business and endorse no one.
DLP: Move Along.
LOP: Move Along. Move Along.

Veronica: Serious? I was the cutest thing there! Everyone likes me and Colombians rule! Wait! They may know I am with Ben and Annie Pando! That explains it. FML!

Mery: I'll win by putting no effort! My plan is working! LMFAO!

Joe "Big Guts" Perkins: FML! My no experience and new wake sock were showing! Called Al crazy and got no endorsement. Hope he doesn't spank me.

Al: ¡Babalu! ¡Ayudame! Put the powers to work on Perkins! I'm the best and even if I have fought everyone I must be elected! If not I may fight! ¡Somos pocos pero locos!

Christian: I got fired, have to pay extreme child support and now this. Great to see a plan come together!

Victoria: I had to show up? Hector the judge unmaker has lied to me! He said experience was not needed to apply. Last time I fight someone else's fight and run for judge. FM!

That's the fake rumors.

Anonymous said...

Tu funni! DLP the Jedi!