A NEW YEAR

 

 

 

Be at war with your vices;

At peace with your neighbors;

and let every new year find you a better man person.

 

Benjamin Franklin.

 

 

Have a happy and prosperous new year.

And hopefully you have followed our number one rule of trials: never ever ever set a case for trial for the first week of the new year. Judges and prosecutors return with new year's resolutions of getting tough on crime and trying more cases and handing out harsher sanctions dancing in their heads like visions of candy canes and free drinks and meals.

 

HR.

Proprietor, Justice Building Blog.



CHAMPIONS

TEAM FIMAN won the second REGJB Fantasy Football league this year, with a sterling (Donald Sterling was on his team) record of 10-3. He truly dominated the league. 

DUSTIN TISCHLER was the Survivor Pool champion, picking a winning team in all sixteen weeks of the season. 

Congrats to our champions, and thanks to all of our players in both competitions who made this a very enjoyable football season. 

Speaking of which…..

Take the Fins at home over the hapless J…E….T….S and Rex Ryan's last game as coach -6. 

Take the surging Raiders on the road, getting 14 at Denver where Peyton Manning is ailing. 

Take the Steelers, at home, in the Sunday night game,  -3, over the Bengals, to win the AFC North Division.   Also take the over 48. 

TRACK SANTA & YUEL LOG

HER MAJESTY, THE QUEEN'S CHRISTMAS MESSAGE


 











NORAD SANTA TRACKER

HANDS UP MIAMI- WE CAN'T BREATHE

In light of the tragic assassinations of two innocent NYPD officers this weekend by a deranged man, is there any further proof needed  that we as a nation are being rent by violence, illegal guns, outdated laws, and a failed justice system that engenders distrust, not trust, and anger, not healing? 

Police kill citizens. Secret grand juries refuse to indict. The old racial lines of white cops and black suspects appear again,  49 years after white Alabama State Troopers attacked peaceful white and black protestors on Bloody Sunday during the march from Selma to Montgomery. Social media crackles with all sorts of messages, some peaceful, some threatening. And then some mentally ill man kills two innocent police officers. NYC Mayor Bill DeBlasio rushes to the hospital, while NYC police union officials accuse the mayor of having blood on his hands. A thirteen year old boys collapses in grief at the sight of his dead father, while uniformed police officers turn their back when the mayor enters the room for a press conference. 

Where are our leaders? Where are the level headed people who are working to bring our society together, instead of wringing their hands over the deep rifts fracturing this country?

We practice a little civil law, and its always a bloody "if they want it-we don't" scorched earth type of litigation. Never room for compromise, every case replete with accusations and the now common litigation tactic of threatening bar complaints. 

In Congress, each party despises the other. When the president makes courageous moves to end  50 failed years of antagonism with Cuba, the other party calls him a traitor and wants to impeach him. One gets the idea that if in one bold stroke the President somehow removed the dictator of North Korea and instilled a peaceful democracy there, the other party- fearful of the president being successful- would call for his indictment for violating international law. 

Every issue in our society seems to be a zero sum game, where each participant only sees a win or a loss, and can't understand that sometimes playing the game is a loss for both sides. 

So the deaths of these police officers, like the death of citizens at the hands of police officers before, becomes just another move in the chess game. The battle for public opinion and the upper hand. Meanwhile, there are no leaders, there is no healing, problems are not being solved, and a young boy faces the first of the rest of his Christmas's without his father. 

"Hands up. I can't breathe. Where's my dad? "
It seems like it will never end. 

NFL WEEK 16 2014.

Perfection.  "The quality or state of being perfect. Freedom from fault or defect." 

Today, Dustin Tischler stands alone at the precipice of perfection. A perfect season. Sixteen picks in the survivor pool, sixteen correct choices. 

Yesterday Plea D went down hard with the Eagles and Mark Sanchez losing to the Redskins. Here's a tip- never place your future in the hands of a Mark Sanchez led team. 

Now it all rests on the shoulders of Tischler, who has picked the Cheaters against the Jets today. 
Will Rex Ryan spoil the dream? Or will Tischler stand with the 1972 Dolphins and Don Larsen? 
Stay tuned. 

We like the Texans +6  at home against the Ravens .
Steelers -3 at home over Chiefs. 
Panthers -4 at home over Browns and Manzel. 

KARMA KRAMER

Many years ago we were retained to represent a troubled man; he was a professional in his late twenties and had some issues with his recovery. He had some personal issues which made him vulnerable to manipulation, and in fact he fell into a trap laid by some BSO deputy-thugs, and their snitches. He tried to get out of what he saw unfolding as a drug deal- but it was too late. He drove away, the police made a very bad stop. He refused a request to search his car and was badly beaten.

The case was replete with issues, from entrapment to a bad stop, to an illegal search, to police brutality. There was really no excuse for the broken nose, black eyes, and missing teeth in the booking photo.

But the case was in Broward. It was assigned to a judge who had been a former prosecutor and a former attorney for the police. She was sarcastic, sneering, uninterested in reading the motion we filed, and tossed- like a dirty napkin- the booking photo we entered into evidence- using two fingers and holding the edge of it and flipping it to her clerk like it offended her that we would argue such nonsense. She insisted on holding the hearing on the motion to suppress as the first thing she did on a busy Monday morning calendar, with a courtroom full of police officers and prosecutors. And she made it a very loud point to tell the bailiff to have a jury outside by 9:30. 

In other words- a Miami Lawyer getting the full Broward Monty.

Our client sat at the table muttering over and over again  "I can't believe this is happening....I can't believe what I am seeing."  We had no words to soothe him. He was right. We couldn't believe it was happening, but for the fact we were in Broward, where it happens every day.

A judge came in to speak with our judge during cross examination. Our judge waived us on- "Don't stop. I am listening."
We sat down at counsel table.  She glared at us. "You are listening Judge, just not to my questions" I said. "ohhs and ahhhs" were issued from the gallery and gaggle of police officers who were enjoying the show, watching a judge abuse us and our client.

"Thank you" our client whispered to us "for at least fighting for me."

Of course the motion was denied. And of course the prosecution increased the plea offer to prison for a man who had a job, had a health issue, and would lose everything, including his irreplaceable health insurance.

But that's why the good lord made juries, and the jury saved us.

But yesterday the jury didn't save Judge Cynthia Imperato. She was found guilty by a West Palm Beach jury for a second DUI outside of ten years. When prosecutors all over the state routinely threaten jail to anyone with the temerity to seek a jury trial on a first DUI, Judge Imperato was sentenced to twenty days house arrest.
But she went to trial and was convicted.
How does it feel when the Justice System works?

Karma Kramer.

BRINGING HOME THE BACON

Over on the South Florida Lawyers Blog,  ("Summary judgment is fun and interesting!" ) they are covering Judge Shephard's massive smack down of Judge David Miller in this opening paragraph of the  opinion on a writ of prohibition: 

It has long been said in the courts of this state that “every litigant is entitled to nothing less than the cold neutrality of an impartial judge.” State ex rel. Davis v. Parks, 194 So. 613, 615 (Fla. 1939). Regrettably, the trial judge in this case has

abandoned his post as a neutral overseer of the dispute between the parties, compelling us to grant Great American Insurance Company’s Petition for a Writ of

Prohibition.

But we like the concluding coda to the opinion: 


In the words of the sixteenth century statesman and jurist, Sir Francis Bacon (1561-1626):
Judges ought to be more learned than witty; more
reverend (sic) than plausible; and more advised than
confident. *** Patience and gravity of hearing is an
essential part of justice; and an overspeaking judge is no
well tuned cymbal.

“Of Judicature,” Francis Bacon Essays, pub. by J. M. Dent & Sons, 1958, Essay

LVI, pp. 162, 163.

Just so we're clear, Sir Frankie B was talking about judges, not bloggers. 

See You In Court. 

btw- any rumor of an alliance between certain judge, prosecutors, raconteurs and North Korea designed to shut down this blog, is merely that: a rank rumor. 

THE WORST OF THE WORST

Hate is protected speech.
We are publishing, with permission of the recipient, the anonymous hate mail sent to her by a coward.
And make no mistake about it, a coward sent this.
We are publicizing it to shame the coward.
Oh, they might enjoy it at first. But as it lingers, and people view it, and think to themselves about the coward who sent it who didn't have the guts to sign their name to their hate mail, it will begin to make them uncomfortable. Maybe they will get upset. At some point they will want us to take it down. But we won't. Others have tried and failed. This post will be an everlasting monument to their abject cowardice.

Enjoy it coward.

Hate mail from facdl member 2 from Justicebuilding

THE BEST OF THE BEST

In the early morning hours of December 16, 1944, under snow heavy skies and zero temperatures, 30 German Divisions attacked Allied armies in the Ardennes Forrest area of Belgium, Luxembourg and France.  The Allies, caught by surprise, the weather having limited the ability of arial surveillance, and overconfidence, fell back under the onslaught, creating a "bulge" in the Western Front. 

The German plan was the smash the Allied armies, re-seize the port of Antwerp, which would have delayed the end of the war by years. Banking on the war weary British and Americans having little appetite for another three or four years of war, Hitler thought he could sue for peace, and then turn his attention and new war machines, like the jet fighter plane, against the Russians on the eastern front. 

A lot hung in the balance as allied troops fell back across a wide swarth of land. But in a few places, the allies refused to yield.  In Belgium, the battle hardened 28 infantry division held the crossings at the River Our and despite being spread perilously thin, held on. This allowed the 101st Airborne Division, which Eisenhower immediately summoned, to be trucked into Bastogne, before it was surrounded. As the 101st marched in, wearing summer pants and shoes- their winter clothes were being sent in other convoys, they met green allied troops fleeing in a panic, many of them screaming that the Germans had them surrounded.  More than one grizzled paratrooper chuckled that meant the 101st had the Germans just where they wanted them. 

What followed in the following days was some of the most miserable, bloody, freezing, fighting of WWII.  The 101st dug into the freezing ground on the outskirts of Bastogne. They were shelled unmercifully. Fighting subzero temperatures at night, German Panzers by day, the 101st held Bastogne. These men, who grew up in the depression; who volunteered for the airborne and survived the toughest training the army could devise; who jumped at night into Normandy and made their division famous, and who jumped into a disaster in Holland during operation Market Garden and again distinguished themselves- these men- simple American boys- cold- far from home- did what made them the greatest generation. They fought for each other. It was unthinkable to run. They all had trench foot- which entitled them to be relieved and removed to a warm tent at the rear- but that meant leaving a buddy behind, so they stayed, and endured the terror of the shelling, and the freezing nights, and fought and held on and won. 

You can find many battles where Americans distinguished themselves. But you would be hard pressed to find another battle, in such horrific conditions, against all odds and superior forces, where a group of men showed just what American Exceptionalism- whatever that may really be- is. 

We really can't do justice to the heroes of the Battle of the Bulge. Read Stephen Ambrose's excellent Band Of Brothers for the best account of the 101st at Bastogne. 

But when you are warm and safe in your bed tonight, remember that almost seventy years ago- the best of the best our nation ever produced, hung on, fought bravely against all odds, and made being and American something to be damned proud of. 

I CAN'T BREATHE

There massive rallies in NYC and DC over the weekend protesting the way the police treat people, and the way the justice system treats police who kill the people they are paid to serve and protect.

In our view we are half way there. When the protests also start looking at the the way the justice system treats defendants, then we will have all of skeletons out in the open. 

One thing is certain- the grand jury process is broken. 
The old saying is that the prosecution can get a ham sandwich indicted. And that is true, unless the ham sandwich has a badge. The last "no true bill" we can remember in Miami that didn't involve a police officer was a case in the mid-to late eighties involving an inner city store owner who electrified the roof of his store because of repeated burglaries. A burglar wandered into the trap and was electrocuted and died and the grand jury refused to indict. 

Grand juries were not supposed to be rubber stamps for prosecutors. But that is the system we now have. And this system is broken and has no credibility when the system is not impartial. More importantly, the system no longer has the faith of the people, and when you think about it, our entire society rests on the proposition that the people have faith in the government. 

MONDAY DECEMBER 22, 2014 IS HANDS UP MIAMI/ I CAN'T BREATHE DAY. 

We invite and ask all attorneys in the federal, civil, and criminal courts to approach the podium with a "hands up" gesture as a show of support for people who are protesting a broken court system. 

See You In Court, Hands-Up. 

In our survivor pool the contestants stand on the brink of a perfect season, with their choices of the Chiefs and the Seahawks winning yesterday.  Can they duplicate the Miami Dolphin's Perfect Season? Stay tuned. 

NFL WEEK 15

It was fun for a while, but the Dolphins' season ends today, in Foxboro, Massachusetts,  in the land of cheaters, ruled by an evil genius.  The Cheaters are -7.5 at home, and fighting for home field advantage, the Pats take care of business and make all Dolphin fans everywhere say "wait until next year…when Jim Harbaugh becomes the coach." 

The Blog fantasy football playoffs enter the semi-finals today, and of course your faithful blogger is in the mix, rolling our opponent last week with a study 162.5 points. And this week, as we have been saying all year to our opponents, " ask not for whom the (Leveon) Bell tolls, Team-Fi-Man, he tolls for thee." 

The game of the week is the Sunday night game, as the Cowpokes travel to Philadelphia, with the winner in, and the loser probably out. It's hard to lay cheesesteaks on a Mark Sanchez led team, and the Cowpokes are destined to lose on a late INT in the first round of the playoffs- it's just their fate- which means we are taking the visitors, +3.5, because you can trust your car to the man who wears the star. Cowboys +3.5 over Eagles.. 

Week 15 survivor pool- we will post the picks when we have both. 

Coming soon. It dominated the blog last December, and people in polite society are still talking about it- the Best Novels, and new this year- the Best Fiction, 2014. 

PHOTOS FROM SHARPSTEIN EVENT PLUS THE GRINCH

UPDATE: SCRUGGS LEAVES SAO: From Ovalle's Herald article: “I’m exploring whether to get back and do law enforcement here or in Alaska,” said Scruggs, 63, whose last day was Friday."
Now there's a quote you don't see every day. 

Read more here: http://miamiherald.typepad.com/nakedpolitics/2014/12/controversial-miami-dade-prosecutor-steps-down.html?utm_source=twitterfeed&utm_medium=twitter#storylink=cpy

UPDATE: PRO SE, A-OK. The pro-se defendant who was facing life in prison before Judge Rodriguez-Chomat this week was acquitted of all counts Friday after just slightly less than two hours of deliberation by the jury. The defendant was sentenced to 14 years on the PVH, proving that you can beat the rap, but you can't beat the ride. 

Courtesy of David Ovalle's twitter @davidovalle305, here are some pictures from the event unveiling the plaque honoring our dear colleague Richard Sharpstein. 

Also- a few alert readers sent us a picture in which they are sure they have proof of the Grinch, planing to steal christmas. (see below) 

Three curious judges….

Two happy judges….

a packed house, including big-wig ASAs

can you spot the Grinch, albeit a well dressed one, planning on stealing christmas? 

AND THEN A HERO COMES ALONG

For those of you new(er) to the REGJB, you might not know that Gregg Wenzel, a former Assistant Public Defender, resigned in the wake of 9/11 and joined the CIA Clandestine Services, where he lost his life overseas, on assignment, in a dangerous part of the world, protecting our freedoms. 

In Miami, Gregg Wenzel's memory has been kept alive by his good friend, Brian Tannebaum, who has attended the yearly memorial service at the CIA with Gregg's family, where there is a star in the lobby reflecting Gregg's "last measure of devotion."

It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.
Abraham Lincoln, Gettysburg Address, November 19, 1863. 


Brian Tannebaum alerted us to  the Press release from Senator Gillibrand's office in which both houses of congress have passed a law renaming a post office in Gregg's home town in his honor. The Bill await's signature of the President. 

“Called to serve his country following the horrific events of September 11th, Mr. Wenzel paid the ultimate sacrifice in order to protect the freedoms we all know and cherish,” said Senator Schumer. “He is an incredible local hero and a true American. Naming the Monroe Post Office after him would be a truly fitting tribute to his courage, and allow his legacy to live on in an enduring way. I am honored to be able to announce that the bill to rename the post office has now cleared Congress, and I am confident that it will receive a signature from the President upon arriving on his desk.”

“Officer Gregg David Wenzel will forever be remembered by the Monroe community as a true hero,” said Senator Gillibrand. “He bravely answered the call to duty on behalf of our nation and put his life on the line to protect our freedoms. Naming the Monroe Post Office after Officer Wenzel will honor his life and commemorate his legacy. I am pleased this legislation has passed Congress and look forward to the President signing it into law.”

“Gregg Wenzel represents an entire generation who bravely served their country by answering the call to service following the attacks of September 11th. Serving on the frontlines of our intelligence operation, he ultimately sacrificed his life in defense of our freedoms. Our country owes a debt of gratitude to Gregg and his family, and for generations to come his hometown will be reminded of his service and sacrifice. Although no one can ever fully repay his family for their tragic loss, I hope this bill will come as some small comfort and as a tribute to his memory,” said Rep. Sean Patrick Maloney.

RICHARD SHARPSTEIN MEMORIAL

We received this email:

Dear Friends,

As we approach the holiday season this year, a time filled with festivities, excitement and family, we will sadly be marking one full year without our dear friend, Richard A. Sharpstein.  With the hope of honoring his memory and his wishes for the holiday season, I invite you to celebrate Richard’s life and work on Thursday, December 11^th at 11:30 AM in Court Room 4-1 of the R.E.G. Justice Building, 1351 NW 12th Street, Miami, Florida 33125.

While Washington is dysfunctional, our understanding is that the costs of this was paid for by private donations from Assistant State Attorneys, the FACDL, and the League of Prosecutors. 

Well done all. Well done indeed. 

For those of us who were friends and colleagues of Sharpie, this is a hard video to watch:

JUDICIAL ROTATIONS 2015

Update: Pro se rolls the dice. HVO and all the other letters of the alphabet; going to trial solo- sans counsel, today- Judge Rodriguez-Chomat. Facing life in prison. And think of it this way- if he loses, who gets the rule 3? See you in court. 

THE CAPTAIN REPORTS:

Round & Round it goes, where it stops, only The Captain knows. 

JUDICIAL ROTATIONS FOR 2015* ....... NOW YOU KNOW TOO .......

Hot off the presses, Chief Judge Bertila Soto announces "the moves":

NEW JUDGES:

Rodolfo Ruiz    Criminal CF-19 CR-4-5 (Rebull's Division)
Steve Millan     Criminal CF-06 CR-3-3 (Ruiz-Cohen's Div.)
Al Milian          Criminal CF-18 CR-7-2 (Sanchez Llorens' Div.)
Veronica Diaz   Criminal CF-20 CR-2-7 (Fajardo's Division)
Jason Bloch       Criminal CF-02 CR-2-8 (Gordo's Division)
Martin Zilber    Juvenile
Mavel Ruiz        Juvenile

ROTATIONS AFFECTING THE REGJB:

Colodny                        Criminal CR-4-7 to CR-4-2
de la O                          Criminal CR-4-5 to CR-4-3
Fajardo                         Criminal to Family
Glazer                           Family to Criminal Bond Hearing Unit
Gordo                           Criminal to Civil
Hendon                        Criminal to Civil
R. Hersch               Juvy to Crim. CF-04 CR-4-7 (Hendon's Div.)
Pooler                          Criminal CR-3-1 to CR-2-4
Rebull                          Criminal to Civil
Rodriguez-Chomat     Criminal CR-3-2 to CR-6-2
Ruiz-Cohen                Criminal to Civil
Sanchez-Llorens         Criminal to Civil
Thomas                       Criminal to Civil
Tinkler Mendez      Crim. CF-60 to CF-16 (Vacant Div.)
Tunis                     Crim. CF-71 to CF-60 (Tinkler Mendez' Div.)
Ward                     Civil to Crim. CF-03 CR-4-8 (Lobree's Div.)

OTHER ROTATIONS:

Areces              Family to Civil
Blake                Civil to Family
Cynamon          Civil to Family
Eig                    Civil to Family
Figarola            Juvenile to Family
Marin                Family to Civil
Miller                Civil to Family
Schlesinger       Family to Civil
Trawick            Civil to Family
Zabel                Civil to Family

*All Rotations will take place between January 2-29, 2015.

SO, YOU WANT TO BE A COUNTY COURT JUDGE .................

Last month Judge Gladys Perez informed Gov. Scott that she was resigning from the bench. The 11th Circuit JNC has now indicated that they are accepting applications for that open seat.  The deadline to apply is December 29, 2014.

All persons interested in applying must deliver a complete application and 10 copies to:  
Christine Hernandez-Baldwin, Chair
Eleventh Circuit Judicial Nominating Commission
c/o Miami Dade State Attorney’s Office
1350 NW 12^th Avenue
Miami, FL 33136

You can find an application here.

CAPTAIN OUT .................
Captain4Justice@gmail.com

SUNDAY NFL SUPRISE ATTACK DECISION

Before there was 9/11 (quick- what day of the week was it?) there was Sunday, December, 7, 1941, "a day which will live in infamy."  For those judges and prosecutors and PDs born after 1975, that was not the day Starbucks didn't offer wi-fi and didn't take groupons (whatever those actually are) for scones. It was the day the United States was "suddenly and deliberately attacked by naval and air forces of the Empire of Japan."

History is important, and we should take a moment today and remember why we live in a country that has Wi-Fi and Starbucks and all the other modern things we can't live without- including the freedom to protest by walking into court in a few weeks "HANDS-UP."

Just a thought.

There isn't a game we would suggest wagering a shekel on today. But we will take a flyer on a few-just for fun. Don't put your Xmas money on these.

The Raiders are +8.5 at home against the 49'ers. The Raiders start Derek Carr, rookie QB, after winning their first game of the season ten days ago. The dysfunctional 49'er stagger into the Bay, their coach the subject of rumors of a post-season trade to Oakland- which the equivalent of a judge being moved from Miami  Beach to Hialeah.  Take da Raiders.

An angry Ravens team comes to Miami after suffering a last second loss against the Chargers at home. The Ravens and our Fins are locked in a tight seven team tie for a wildcard spot. The Dolphins have a December game with  playoff implications! The Dolphins are favored by 3. The Fins will win 27-24. So it's a push. Take the Fins anyway, especially if you are going to the game. Have some fun.

Seahawks at Eagles. Another NFC West team goes on the road, its troubles not necessarily behind them. The problem for Eagles fans is their QB. Which Mark Sanchez will show up? No idea. So take the over 48.

J....E....T....S....JETS JETS JETS travel to the cold confines of Minnesota (doncha know) to play the Vikings. The Jets are in their own race of sorts, to be on the clock for the first pick in the 2015 NFL draft- during which they will NOT pick a certain QB from FSU. The Vikes are giving up 5.5. They could be giving 25.5 and will steal beat the sad sacks from Broadway.

Cheaters are in San Diego, and everything about this game soeaks for let-down game for the boys from Bahstan. Except that their evil genius coach doesn't allow for such things to occur. After every game he speaks in the same mono-tone voice, mumbling about how his team needs to get better in the three phases of the game- no matter the score, no matter the result.  The cheater doesn't have any let downs, and neither will his team. Cheaters -3.5 at sunny San Diego.

SURVIVOR POOL- If possible- our two survivors should post their picks in the comments section. We are about to take off and won't have internet for a while. If both players post their pick in the comments, we won't post either comment until we receive both and then they can check the comments section. Good luck.

HANDS UP-MIAMI

"HANDS-UP" is becoming this generation's raised fist, although this generation first has to pause a moment and put down their Starbucks Latte and their cell phone and their Go-Pro camera, so the maneuver loses a little bit of its spontaneity.

The gesture is (despite the unloading of accouterments ) a powerful one. It doesn't insult police officers, as many police officers seem to think. It questions what the police do, and just as powerfully, how the court system treats the aftermath. 

Miami has had its share of police shootings, good and bad. And as a credit to former State Attorney Janet Reno, she and her top prosecutors never wavered in prosecuting an officer if the shooting was a criminal act. See our blog post:  "1982 the Case That Made Miami Burn", here. 

"I CAN'T BREATHE!" Yesterday, a Grand Jury in NYC cleared a Police Officer who killed a man. The officer used a banned choke hold. The encounter with the man was over the man selling single cigarettes, which is a crime. But it is not a crime you should be killed for. 
From the NY Times Coverage:
“I can’t breathe,” Eric Garner had gasped after the officer put his neck in a chokehold on a hot July day on Staten Island, a fatal encounter captured on video and viewed by millions of people. On Wednesday, after a grand jurydeclined to indict the officer, the words — and the video — were revived in a wave of despair and fury that rolled as far out as the corridors of Capitol Hill and the streets of Oakland, Calif.

Miami needs to join the outrage over the criminalization of our society. People who have the barest encounters with police officers end up getting arrested for nebulous crimes like resisting arrest without violence, which no matter how you cut it, is basically not doing everything a cop tells you to do when you have an encounter with him or her. The case law is replete with decisions pointing to the "voluntary nature" of encounters between citizens and police officers. Appellate judges, secure in their chambers, write about the citizens unfettered right to tell the police officer NO and to go about their day. These judges would be better served spending an afternoon in misdemeanor jail arraignments as the parade of poor individuals, most of them of color, are paraded in front of a judge on a television, and advised of their rights, while they watch the proceedings through one swollen eye, because they "fell" during the arrest for disorderly conduct, or failure to obey the lawful order of an officer. 

"HANDS-UP MIAMI" isn't about disrespecting the police. It's about the court system disrespecting the citizens of this community. It's about being beaten when arrested, and then coerced into a plea ("all plea offers are REVOKED if the defendant goes to trial.") and then suffering the unimaginable consequences of a simple misdemeanor on your record. You lose the right to drive. You can't rent a decent apartment. And that doesn't really matter, because you can't get a decent job. 

Do we, as lawyers, sworn to up-hold the constitutions of this State and this country, have the guts to protest? Will we all agree to walk into court on Monday, December 22, 2014 and Tuesday December 23, 2014 (albeit light court days) and approach the podium HANDS-UP before addressing the court. (Fed court included!) 
Can we make that simple gesture, in solidarity with all those who march, who are beaten, who are choked and shot and killed? 

Or don't we have the guts to protest? We read about those who crossed the bridge and marched into Selma. Alabama and were beaten bloody by State troopers on "bloody Sunday"- March 7, 1965. That march led to the passage of the civil rights act. No one will be beaten or gassed or set upon by dogs- although a few judges may frown at you. 

HANDS-UP MIAMI. Let the world know we are with you. 

See You In Court. HANDS-UP. 

MNF-TUESDAY EDITION

UPDATE: SORRY

In the 1968 Olympics (and yes you young ASAs and PDs and Judges -many of us litigating against you were alive then) 
gold medalist Tommy Smith and Bronze Medalist John Carlos raised their hands in a "Black-Power" salute. The gesture wedded sports and politics then and for thereafter. (The befuddled silver medalist from Australia was just along for the ride). 

Hands up- Don't shoot us. 

On Sunday, before the start of the football game in St. Louis, several members of the St. Louis Rams came out of the tunnel with the "Hands-Up" gesture, now universally recognized as a show of support for the organizers in Ferguson, Missouri. 

The St. Louis police department, sworn upholders of 9 of the first 10 amendments to the US Constitution, acted with outrage, and demanded that the Rams and the NFL punish the "thugs" (their word, not ours) who perpetrated the salute. 

Somebody needs to sit down with the Neanderthals (our word) who work at the St. Louis police department, and read to them the first amendment to the constitution of our country.  Perhaps instead of reading "Goodnight Moon" while sipping coffee in a Dunkin Donuts (yes, the outrageous stereotypes are what we were looking for), the members of the police department should remember that they work for a police DEPARTMENT and not a police STATE- although we are sure that the phrase "all orders must be obeyed" probably resonates favorably with them. 

Our final thoughts- Moronic. Disgusting. And Dangerous. Because you better believe the aggrieved law enforcement gendarmes will be taking our their anger and frustration on the first citizen that tells them to go to hell- which by the way- citizens are allowed to do. 

This is your Miami Dolphins Monday Night Football-Tuesday blog edition.  Updated- Fins won-playoffs hopes still alive. 

Twenty years ago Dan Marino ran the "fake spike play" at the end of the first half in a monumental Dolphins comeback and win. The win sent the J…E…T…S….  JETS JETS JETS into a 4-33 downward spiral of losses. 

In Fantasy Football this week, it wasn't pretty as Rumpole's team hung 131 points on Mr. Markus's team in what the last President Bush would call "a thumpin."  Markus managed to squeak out 71.75 points. 

YOU KNOW YOU'RE HAVING A BAD DAY WHEN…..This is how you start or end it…

ABANDON HOPE ALL YE WHO ENTER HERE

NFL WEEK 13 2014

Our survivor pool rolls on as the two finalists refuse to lose. 

This week Plea D is shopping with the Colts before Cyber Monday, while Dustin Tischler thinks he got a black Friday steal with the Rams. We could have a winner today. 

Speaking of winners and shopping, here is some way to pick up some ez holiday scratch:

The Packers at home -3 over the overrated Cheaters. -3, really?  This will pay for all of Xmas and a nice bottle of   for New Years Eve. 

Saints at Steelers. Kinda like the Steel men -3.5 at home, but really like the under 54.5. 

Colts -8.5 at  home versus Washington. 

Target claims to have sold 1,800 televisions a minute between when it opened on Thursday, Thanksgiving eve, and Friday evening.  For those of you playing at home, thats 108,000 sets an hour, and 1,296,000 televisions a day. 

ON RACE AND RIOTS

On July 12, 1967, Newark, New Jersey erupted into flames and rioting when two white police officers stopped and beat a black cabbie for "passing by them"  in his cab. By July 17, 26 people were dead and more than 725 were injured. 

On December 17, 1979, four City Of Miami police officers beat Arthur McDuffie to death, after he was seen speeding on a motorcycle.  In May, 1980, after an all white, all male jury acquitted the officers in Tampa (Judge Lenore Nesbitt acquitted one of the four on a rule 29 motion), residents of Overtown and Liberty City rioted,  after a protest at our courthouse- then known as the Metro Justice Building, turned ugly.  By the end of that week, as Miami burned, lawyers and litigants were walking into a  Justice Building guarded by armed national guard soldiers. 

The LA Watts riots. The Rodney King riots. Two more riots in the 1980's in Miami over race and the police. 

The meta-data strongly suggests that when white police officers are acquitted after killing black suspects, people riot. 

So why are people rioting? 
Because the Justice System is broken. 
When you think of the American Justice System, what do you think of?  Exceptional cases where people are vindicated? Or horror stories of innocent people plea bargaining in the face of overwhelming government  coercion? Innocent people spending decades on death row until exonerated by DNA. And this includes people who "confessed" even though innocent. 

If the Justice system doesn't provide justice, are we surprised that angry and disenfranchised people take to the streets? The people who are arrested for petty crimes like disorderly conduct or resisting arrest without violence or failure to obey the lawful order of a police officer and are processed through a system designed to wear them down and beat them down to the point where they eventually take a plea, with the promise all they have to do is pay a small fine. Until they realize  that the arrest follows them for the rest of their life and they can't get a decent job, they can't qualify for  government housing or benefits, and all they have left is their anger, and rage and the streets. 

That's why people flip police  cars and loot and burn the stores of innocent store owners. 

We stood with our friend in the Liberty City riots while his family butcher store, which had served the neighborhood for over thirty years, was burned to the ground. He cried, not for the loss of the store, but because he recognized the children of people he had done business with for decades, looting his shop- rage in their eyes, blinded by anger and hatred and with no other way to express those feelings. 

Race matters. It always has. It always will. We may someday become a society where a man or woman is judged by the content of their character and not the color of their skin. But how do we judge the content of the character of man or woman with a string of petty arrests for which they had no way to fight back?

Close your eyes? Imagine Rumpole, a middle aged lawyer of some renown, writing this blog. 

Did you see a black man or a white man? Be honest. 

Race will always matter. It's what we see when we see someone. 

But race does not have to mean rage. It can mean the same kind of wonderful differences that make all humans special and unique. 

But until we have a justice system that dispenses justice, race will always have a component of rage. Until we stop rewarding judges for the total number of cases they close out every year, and instead reward them for their fairness and honesty and their ability to see a wrong and make it right, race will matter to the black child who sees her father in jail, again, powerless to fight back, incarcerated  by  a system geared not to giving him justice, but to closing out his case as quickly as possible. 

This is why Ferguson is burning. Whether the officer was right or wrong, it doesn't matter. What matters is the perception that when it comes to court, race matters and the game is tilted in favor of the white police officers. This is why Newark burned, and why Miami burned and why Los Angeles burned, and this is why our cities will continue to burn. 

Because race matters in country where justice doesn't. 

See you in court unless the damn building is burned down before Monday. 

TIS THE SEASON

UPDATE: Our two remaining survivor pool players live another week, as both took the 49'ers who eked out a win over Washington. 

AHEM…..by INVITATION only. (If you're indicted, you're invited.)

Item: The new judicial assignments for 2015 are out.

Scene: A criminal defense law firm. A few lawyers sitting around the table dividing cases and coverage for Monday.

Dramatis Persona: Attorneys
Judges: Hirsch, Hersch, Schwartz, Schwartz, Swartz, Thomas, Thomas,

Attorney Thomas: Whose's covering Hirsch?
Attorney Schwartz:  I got Hirsch but not Hersch.
Thomas: You got Hirsch?
Schwartz: Sure.
Thomas: But not Hersch?
Schwartz: Right.
Thomas: That's what I am asking you. You have Hirsch?
Schwartz: Yes.
Thomas: Who's got Schwartz?
Schwartz: I got Schwartz, but not Swartz.
Thomas: What?
Schwartz: And you got Thomas and Hersch and Schwartz.
Thomas: Wait.
Schwartz. It's easy.
Thomas. So you have Hirsch, but not Hersch. Schwartz but not Swartz, and Thomas but not Thomas.
Schwartz. Exactly.
Thomas. I don't even know what I just said!!
Schwartz: It's really not complicated.
Thomas. Take it slow.
Schwartz. I got Hirsch. You should take Hersch. I got Schwartz and you can cover Swartz. And you go to Thomas and I go to Thomas.
Thomas: Aye Dios Mio.
Schwartz: Huh? Did you say De La O? That case got continued.

NFL WEEK 12 2014 : A THANKSGIVING SPECIAL

We roar into Week 12 of the 2014 NFL season with our Fantasy Football league very competitive, our two remaining survivor pool players in a death grip struggle for the title, and with football set for Sunday, Sunday night, two games Monday and then the traditional Thanksgiving day games. Is there any better week for football? With a cold front expected to hit our fair town Wednesday, its shaping up to be a great holiday week. 

Need some flow for Black Friday?  Try out these money makers. 

The Broncos had their let down game last week. So this is the week Peyton and company bounce back against our Dolphins. It's going to be warm, if not downright sticky, and Peyton does much better in warm weather than cold. Petyon has a palatial condo on the tip of  South Beach, so maybe he's had some home cooking and this isn't as much a road trip for him as say Buffalo. 
 But we like the Dolphins to keep it close. They have been playing well, are well rested, and can compete. Take the 7 points for the hometown Fins and head on out to the stadium and cheer your cash home. 

The Bears came though for us last week, and we like the Bruins at home again, -5, against the Bucs. 

The Cowpokes on the road against the woeful Giants in New Jersey.  The Gints are getting 4 at home, while the pokes are coming off a bye week after a game in our favourite city in the world: London. We were initially thinking the Giants would keep it close against a rival. But on further review,  we like the under 48. 

Love the Saints at home Monday night against the Ravens -3. Can't see the Saints losing three in a row at home. 

Updated: Like the Texans over the visiting Bengals, even with RB Arian Foster out.  Take the Lone Star State boys with their new QB over the up and down Bengals. This is the cats third road trip in a row, and after a blow out by the Pack, an upset over the Saints, they are due to revert to their mean, and lose in Texas. Texans -2 over the Bungles. 

Also like the Bills in Detroit over the Jets. There's something about adversity that makes a team concentrate and perform.  Take the boys from snow-land giving up a pedestrian -2.5 over the hapless J..E…T…S. 

"With the first pick in the 2015 NFL draft the Oakland Raiders trade their first round pick to the NY Jets for the Jets first round picks in 2015, 2016, and 2017. The New York Jets are on the clock. 

With the first round pick in the 2015 draft, the New Jets select Jameis Winston, quarterback, Florida State." 

KAYO MORGAN: DEATH OF A LEGEND

Amidst the insanity and horrible treatment of clients and attorneys alike in Broward County, stood one lawyer, a criminal defense attorney to his core, who never blinked, never wavered in the zealous defense of his clients, and quite frankly just never gave a damn what any prosecutor did or any judge said. His name was Kayo Morgan, and word reached us today that he passed away from cancer at age 62. 

Was there ever a better name for a trial lawyer than "Kayo"? Because many times that's what he did to his opponent's case at trial. 

The stories about Kayo are legendary, and a few must be told here, starting with the infamous Monkey.

Kayo had a pet monkey, that's just the type of guy he was. And as the Monkey got older, he developed some medical conditions, like we all do as we age. Kayo was set for trial in the Keys, his Monkey was ill and needed constant medical attention, so he filed a motion to continue, which the judge denied. So Kayo, being Kayo, showed up to try the case, with the Monkey as co-counsel! 

Kayo's Monkey Smooch, during a break in the proceedings. Really. 

The judge was not amused, and held Kayo in contempt. So guess what Kayo did? From the Sun Sentinel Article:

Morgan propped the monkey on his shoulder while questioning a witness at the contempt hearing.

That alone gets Kayo immediate entry to the trial lawyer hall of fame. 

We did an entire post on Kayo and the Monkey, here. 

But don't think that Kayo was a fool or a buffoon. Nothing could be further from the truth. He was a hell-of-a trial lawyer who took on the most difficult cases, and won more than his share of them. 

We first came across Kayo when we were in Judge Sepe's courtroom waiting to call a case, and this somewhat scruffy, unshaven man in jeans, cowboy boots, and a string-bolo tie, approached the podium, announced his appearance, and called a case for trial. 

As Sepe was inquiring whether he was an attorney, Kayo reached into his file and pulled out a crumpled piece of paper that was either an appellate opinion, a bar opinion, or an AG opinion, stating that he could not be required to wear a suit and tie while trying a case. Sepe was momentarily flummoxed, and then allowed  the case to go forward. The next day we were  present for the verdict: not guilty. 

Kayo Morgan was sui generis. He was one of a kind. Rest in peace. 

THE GOOD FIGHT

The 3rd DCA reversed Judge Milt Hirsch this week in a case in which Judge Hirsch suppressed DNA obtained via consent for one case, but in which the DNA was matched to another crime in the database. 

We don't have Judge Hirsch's order granting the defense's motion to suppress but what we can glean from the decision  is that the privacy concerns and the issues of governmental intrusion into our genetic code fueled the order- along with Judge Alex Kozinsky's powerful dissent in U.S. v. Kincade, 379 F.3d 813, 870  (9th Cir. 2014). 

Here is the link to the 3rd's opinion. State v. Gibson.  (If this was in Broward you might have to pay to read it, but no one has ever mistaken this venue for Broward). 

If we didn't have intelligent and thoughtful and courageous Judges who are willing to look at cases and issues from outside the box and from different angles, then we would just have a rubber-stamp judiciary (11th Cir anyone?) in which cases and defendants are transported into the maw of the criminal justice system and come out the backend broken and incarcerated with their convictions routinely affirmed (11th Cir anyone?).  

Thankfully we have some judges who don't run in that hamster wheel that the government tries to force them into. 

BTW: It's National Peanut Butter Fudge Day. The resolution approving the day cleared the senate last year 51-49 and President Obama signed the bill into law. 

See you in court. 

I'M SORRY

"I'm sorry…so sorry….that I was such a fool"

David Ovalle and the Herald have the article:

Miami-Dade Judge Jacqueline Schwartz is apologizing after ranklingCuban-American lawyers with her election-night comments about beating a "nondescript Hispanic."

"I fully understand my comments could readily been seen as offensive to the community, something I never intended and that pains me greatly," Schwartz wrote Saturday in a letter to the Cuban American Bar Association (CABA).

"I should have never issued the post-election statement that has, understandably, caused do much concern. I retract the statement completely."

The judge also said she will ask the courts to "participate" in judicial diversity training.

Scene: Inner sanctum of power. Chambers of Chief Judge Bertie Soto:

Dramatis Personae: Judge Soto, judicial assistant. 

Judge Soto: "…and in conclusion, while I appreciate your desire for a larger courtroom and chambers, may I remind you that you are one of more than two hundred judges, and the assignment of chambers is based solely on seniority, and due to the fact that you were just elected to the county court and have not yet even been sworn in, the large courtroom on the 4th floor of the justice building, currently being used by Chief Administrative Judge Safyie, will not be available for your misdemeanor calendar. 

Yours, blah blah blah…you got that?'

JA: "Yes boss."

JS: Anything else?

JA: More complaints about the civil courthouse. Apparently a bird flew into an open window and grabbed a piece of paper off a desk and flew out. The attorney wants to sue. 

JS: We'll handle it tomorrow. 

JA: And Judge Schwartz is calling for courts to participate in judicial diversity training. 

JS: What the hell does that mean? Courts participating? Courts are inanimate objects. She wants Judges to get diversity training? 

JA: Apparently so. 

JS: So she insults the hispanic population of Miami, and feels that because of that, every judge has the problem she has?

JA: Yup. 

JS: They don't pay me enough for this job. 

JA: Should I send a reply?

JS: Yes. Tell her to take a flying ….nah. I will address it tomorrow. 

JA: Good night. 

JS: Good night. 

See You In Court, unless it is canceled due to diversity training. 

dream sequence…the page gets all funny and weird before becoming clear and we see President Obama standing in the Rose Garden in 2015. 

Obama: And I want to thank Justice Ginsberg for her many years of dedicated service to the court and this country. And I am proud to announce her replacement will be a distinguished jurist, a jurist who forever changed the landscape of American jurisprudence by coming up with the startlingly original and amazing idea of requiring all judges to undergo judicial diversity training. Now, I know in 2015 this seems standard practice, but I  take you back to that now famous letter, sent to the Cuban American Bar association in Miami, a letter which has since been safely ensconced with our most treasured letters of the republic in the federal archives, and a letter that set the tone and standard for the judiciary.  It is therefore with an enormous amount of pride that I nominate as the next Justice of the United States Supreme Court, J….

…
IA= INSENSITIVES ANONYMOUS.

"Hi and uhhh… welcome to the inaugural meeting of Insensitives Anonymous.  A world wide fellowship of men and women who help each other stop being insensitive. This is a closed meeting, and you are welcome to stay if you have a desire to stop being insensitive. If you have been insensitive in the last twenty-four hours, we ask only that you stay and listen. So, I will begin. My name is Jackie, and I am a judge, and I am insensitive to hispanics…

Everyone in the audience: "Hi Jackie!"

Read more here: http://miamiherald.typepad.com/nakedpolitics/2014/11/miami-dade-judge-apologizes-for-saying-she-defeated-nondescript-hispanic.html#storylink=cpy