Thursday, February 26, 2015



BREAKING NEWS ..............


Numerous news agencies are reporting that President Barack Obama has nominated Barzee Flores to an open seat in the Southern District of Florida.  (This is the open seat from when Robin Rosenbaum was elevated from the District Court bench to the U.S. Court of Appeals for the 11th Circuit).

Judge Barzee started her career as an associate with the law firm of Sonnett, Sale & Kuehne and she worked there for two years before becoming an Assistant Federal Public Defender from 1990 - 2003.  She then ran unopposed for Circuit Court Judge in 2002 and won a seat on the Circuit bench in Miami-Dade County and served there from 2003 - 2011.  (She won reelection in 2008 without opposition).  While on the bench, she served in both the Criminal Division and the General Jurisdiction Division as well as having the honor to sit by designation on the 4th DCA.  She resigned from the bench and joined the law firm of Stearns, Weaver where she concentrates her practice in commercial litigation and arbitration.  She also serves as a private judge, arbitrator, special master, and umpire in appraisal disputes. She is a UM law school graduate.

The two finalists who did not make the cut were U.S. Magistrate Judge Barry Seltzer and Circuit Court Judge Peter Lopez.

Good luck to Judge Barzee as she makes her way inside the beltway and through the confirmation process.


Wednesday, February 25, 2015


When we last left the Honorable Jacqueline Schwartz (Motto" Last names matter")  she had told the supporter of her opponent "F*&K YOU" literally and after winning he election, "F%#K YOU" figuratively to Miami's Latin Community.  Here's the recap of her insulting the Cuban Community and her apology.  Basically, after winning a contentious race where she cursed like a sailor, she reflected on her victory by saying "that voters had "gone past the days when any nondescript Hispanic could go on the ballot and defeat any Anglo sitting judge." 
We covered the most infamous judicial victory speech here. 

Now the Florida Supreme Court will publicly reprimand Judge Schwartz. For those of you not familiar with a public reprimand, the Supreme Court summons the offending judge to Tallahassee where basically they yell at her and ask "what the F%^K were you thinking?" 

How will this all play out? 
No F'ing idea. 
See You in F'ing court. 

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

Monday, February 23, 2015


There was a Florida Supreme Court workshop on Courts today in Miami. Judge Soto was there. So were a host of other judges. The public participated, mostly asking questions about how and why they got screwed in their particular case, which of course the judges couldn't answer. 

Here is the startling news to come out of the workshop: (steady now) The court system is out of money, it works inefficiently,  and the technology is thirty years old. 
Yup, that is a big blow for most of you to read, but the truth will out no matter how difficult to hear. 

Electronic filing is the glaring example of Florida court system incompetence that we cannot figure out. 
Roughly a decade ago the federal court system went to electronic filing. There are also electronic dockets. Anyone with access to the CM/ECF system can access any case and see any document (that hasn't been sealed) that has been filed. The government files discovery electronically, a sample of which we have included below. 
As much as we hate to say it, the Fed system works. You can file the same document in Dallas, as in Miami, or anywhere else in the federal system and you file it the same way (except in Dallas where your pleadings have to include "y'all"). 

With this template before it, Florida apparently ignored the Feds. We understand the sentiment, but in this case Florida ignored the Feds  to their detriment. Couldn't Florida have hired the same software developers? The biggest flaw in the Florida system is that the documents are not accessible. So If you come late into a case you can't simply go on-line and download the documents to get up to speed. The Florida system looks cheap, it acts clunky, there is this ridiculous requirement that if you don't enter  the exact number of pages in the document the system makes you start all over.  Overall, Florida bought a "compuserve" system in an Apple world. Or put another way, Florida has a rotary phone system in an iPhone world. Or put another way, they got ripped off and screwed. But that's technical legal jargon, better left for the civil blogs to discuss. 

Basically, the Feds got it right and we dropped the ball. Ouch. There. We said it. 

See you in court. 

Here's an example of the wonderful discovery that you get in federal court, not including Jenks material, which as we all know must be disclosed within two dozen years after the verdict.

Sunday, February 22, 2015


Life turns on a dime. The pages of this blog in the new year have shown a much, as a seemingly never-ending litany of death an illnesses  are recounted day after day. 

From noted neurologist and NY Times contributor Oliver Sacks:

A MONTH ago, I felt that I was in good health, even robust health. At 81, I still swim a mile a day. But my luck has run out — a few weeks ago I learned that I have multiple metastases in the liver...but now I am face to face with dying. The cancer occupies a third of my liver, and though its advance may be slowed, this particular sort of cancer cannot be halted. It is up to me now to choose how to live out the months that remain to me. I have to live in the richest, deepest, most productive way I can
Over the last few days, I have been able to see my life as from a great altitude, as a sort of landscape, and with a deepening sense of the connection of all its parts. This does not mean I am finished with life.On the contrary, I feel intensely alive, and I want and hope in the time that remains to deepen my friendships, to say farewell to those I love, to write more, to travel if I have the strength, to achieve new levels of understanding and insight.
This will involve audacity, clarity and plain speaking; trying to straighten my accounts with the world. But there will be time, too, for some fun (and even some silliness, as well).
I feel a sudden clear focus and perspective. There is no time for anything inessential. I must focus on myself, my work and my friends. I shall no longer look at “NewsHour” every night. I shall no longer pay any attention to politics or arguments about global warming.

A beloved judge falls ill and has a serious operation and is hopefully recovering. Judge Morton Perry lives a long and productive life before passing away this year. Ditto for Judge Marshal Ader. And yet every so often we walk into the courtroom on the sixth floor once occupied by Judges Manny Crespo and Rob Pinero and we remember that there are no guarantees. The days of our lives are not fixed by anything other than….what? Luck? Happenstance? Providence? 

How can we believe in Providence when we recall the case of the innocent child cut down by the bullet meant for the drug dealer? The Miami Dade Police officer murdered in his car in a tragic case of mistaken identity?  The family killed by a drunk driver, when leaving the house five minutes earlier or later would have avoided the confluence of lives and tragedies? 

Is Dr. Sacks lucky to be able to confront his mortality? Are the precious days in which he will squeeze every ounce of juicy life worth the fear of the near, impending end? Or does the certainty remove the fear? 

Questions; we have thousands. Answers; we have few. 

It may sound trite, but we know this: in the end it is the quality of the life you live, not the quantity. The stand taken for principal. Character is celebrated when a small woman won't go to the back of the bus. But real character is what you do when no one is looking; when you pause as you rush to your next case and hold the door for the overburdened woman pushing a stroller or stop and spend a minute to assure an elderly woman that her grandson will be released shortly, or the money you slip into the hands of a hungry person, or the anonymous donation you make to the charity. There are the smiles on the face of children when the work you have done results in their father or mother walking through the door of home that night. The teenager who completes drug court after you refused to give up on her and the parent who can do no more than say a heartfelt  "thank you" when she has her daughter back. 

This is life. Not the life of your family, but the life of our work, and it is what we do that hopefully, when the end arrives, will allow us to say we took our skills and made a difference. That we squeezed from life every last ounce of juice and drank deeply and with satisfaction. It is what, we think and hope, will allow Dr. Sacks to live these last months, and hopefully more, with a smile on his face. 

See you in court. 

Wednesday, February 18, 2015


This email went out today. 

 Friends & colleagues, many of you have been inquiring about our good friend Stan.  Stan underwent a very lengthy robotic surgery at UM for oral throat cancer, the surgery went very well, and in about 6 weeks he will undergo intense radiation therapy. Stan is still in ICU, and will be at UM for the balance of the week. Obviously he has taken a leave of absence from the Family Bench.  I spoke to him this morning, and he is upbeat and positive, and sends thanks to all of his well wishers for their prayers and support.  Feel free to email him gatorjudge13@gmail.com, since talking is difficult for now. Best, Bruce

Tuesday, February 17, 2015


Miami activist who helped found the Alternatives program- Georgia Ayers, has passed away. The Herald Obit is here. 

Ayers commanded the attention of local judges, city officials, public defenders and the media.
“Mrs. Ayres was one of Miami's most influential civil rights activists who worked tirelessly to guide troubled young people away from the criminal justice system and encouraged them to lead productive lives. Her work as the founder of the Alternative Program will always be remembered as well as her contributions to Miami-Dade County’s history,” said Miami-Dade Mayor Carlos Gimenez in a statement.

If four  of the best words a baseball fan can hear is "pitchers and catchers report", then the two best words in the English language- first place obviously being "NOT" & "GUILTY" are "Play Ball." 
Pitchers and catchers reported yesterday. Opening day is not that far away. 

Great job by the Captain getting Judge Emas to write about his memories of Irwin Block. 

See you in court. 

Read more here: http://www.miamiherald.com/news/local/obituaries/article10523009.html#storylink=cpy

Monday, February 16, 2015



IRWIN BLOCK HAS DIED ............... Services at 3PM today.

On July 31, 1963, two gas stations attendants were murdered in Port St. Joe, Florida, a small town located in the Panhandle of the State.  Within hours, the Gulf County Sheriff's Office had arrested Freddie Lee Pitts and Wilbert Lee.  Pitts and Lee were indicted on two counts of First Degree Murder.  On August 28, 1963, Judge W.L. Fitzpatrick sentenced both men to death.

You did not read that incorrectly folks.  It took 28 days from the day the crime was committed until the date that the death sentence was ordered.

For most of the next decade, a young attorney by the name of Irwin J. Block took on the cause of Pitts and Lee, pro bono, in a case that all Criminal Law 101 law students now study.  Block, along with Former Miami-Dade Public Defender Phillip Hubbart represented Pitts and Lee before the 1st DCA, the Florida Supreme Court, and the US Supreme Court; they also represented the two defendants in their 1972 retrial, (where they were again found guilty), and didn't stop fighting for the two men until Governor Ruben Askew pardoned both men in 1975. 

The Miami Herald summed it up best by saying of Block: "He was one of South Florida's most highly sought defense attorneys, a legal legend who helped get two black men off Florida death row in a 1963 murder they didn't commit."  Block also represented Clarence Gideon for a period of time as part of his work with the ACLU.

We did not know Irwin Block personally, but 3rd DCA Judge Kevin Emas did.  We asked Judge Emas if he could provide us with some personal words.  Here they are, unedited:

Captain:  I had the privilege of working with Irwin for six years while I was at Fine Jacobson Schwartz Nash Block and England. Here are a few thoughts.  Thanks for doing this.

Mr. Block

Irwin Block was old school.  87 years old and still going to work.  He loved the law.  He loved being a lawyer.  He loved being a trial lawyer.  And make no mistake about it.  Irwin was not a litigator.  He was a trial lawyer.  And he was extraordinary in trial.  Even opposing counsel in a trial would sometimes find themselves becoming spectators, watching with admiration as Irwin held the witness and the jury in the palm of his hand.   

Many of you know that Irwin Block (together with Phil Hubbart) represented Freddie Pitts and Wilbert Lee, two black men charged with murder in St. Joe, Florida in 1963.  As a result of the efforts of Irwin and Phil, and those of Pulitzer-Prize winning journalist Gene Miller, Pitts and Lee were pardoned after twelve years on death row for murders they did not commit.   

Irwin Block was involved in many high-profile cases over the course of his exceptional career.  But for all his talents as a trial lawyer, Irwin was a humble man.  He never sought the limelight, and bristled at the notion that he should ever be honored for just doing his job.  But honored he was, including the American Jewish Congress’ Judge Learned Hand Award, History Miami's Legal Legend Award, and the DCBA’s David W. Dyer Professionalism Award. 

Irwin was more interested in fighting for clients than fighting for causes.  Old school indeed.  He taught me much about being a trial lawyer.  I’ll never forget his cardinal rule:  “You can’t always outsmart the other side.  But you can always out-prepare them.”  As good as he was in trial, he was even better in pretrial strategy, motions and deposition.  He won hundreds of cases that would never see the light of a courtroom because of the damage he had done in deposition and pretrial motions.  Irwin left a legacy of excellence.  Each of us who knew him, who worked for him, who worked with him, who learned from him, has a profound respect that is difficult to explain in words.  But here’s just one example: Nearly every lawyer who worked with him, even after leaving the firm and establishing their own successful practice, would continue to call him Mr. Block when they saw him.   They felt it somehow disrespectful to call him anything else.  (I must confess that my first draft referred to him only as Mr. Block.  I hope he will forgive this final version.)

I’m not just a better lawyer for having known Mr. Block.  I’m a better person for having known Mr. Block.

A celebration of his life will be held on Monday February 16th at 3 PM at Beth Israel Memorial Chapel, 1115 Jog Road, Boynton Beach, FL - See more at: http://www.legacy.com/obituaries/herald/obituary.aspx?n=irwin-j-block&pid=174159601&fhid=5131#sthash.FEeVtFpE.dpuf
A celebration of life will take place on Monday, February 16, 2015 at 3:00 PM at Beth Israel Memorial Chapel located at 1115 Jog Road, Boynton Beach.  Block was 87 years old.

His obits can be found here and here.

A celebration of his life will be held on Monday, February 16th at 3 PM at Beth Israel Memorial Chapel, located at 1115 Jog Road, Boynton Beach.

CAPTAIN OUT .............

He was known as someone with impeccable ethics and the highest level of professionalism and spent his career fighting for civil rights. He received numerous awards during his law career, including the David Dyer Professionalism Award (2011), the Judge Learned Hand Award (1989), the Dade County Bar Association Criminal Justice Award (1990) and the Metropolitan Dade County Florida Certificate of Appreciation. - See more at: http://www.legacy.com/obituaries/herald/obituary.aspx?n=irwin-j-block&pid=174159601&fhid=5131#sthash.FEeVtFpE.dpuf

Sunday, February 15, 2015


Continuing our theme on social media and forgiveness, we highlight a NY Times Magazine article this week:  "How One Stupid Tweet Blew Up Justine Sacco's Life". 

The highlights in case you missed it as it unfolded:

Justine Sacco was 30 years old, a NY'er, and senior director of corporate communications for IAC.  Flying on her way to South Africa to meet her family, and clearly punchy from dozens of hours of airports and airplanes, she engaged in a series of dopey tweets like this:  "Chilly- cucumber sandwiches- bad teeth- Back In London!"  There was another one complaining about the body odor of a German gentleman in first class, and then finally, as she boarded her flight to South Africa and the last leg of her trip, the tweet that changed her life (for the worse) forever: "Going to Africa. Hope I don't get Aids. Just Kidding. I'm White!" 

By the time she landed, her twitter account was the number one trending account on Twitter world wide. Her phone had blown up. A high school friend she hadn't heard from in years texted her "I'm so sorry for you."  The Twitter-universe arranged for other tweeters to be at the airport and snap pictures of her in the terminal. In short order she was fired, shunned,  and pretty much had ruined her professional career in the blink of an eye. 

It was a stupid tweet, no doubt. But what happened to her, and the magazine article lists a few other shocking examples of social media wreaking people's lives, should cause anyone to think twice before ever tweeting  or posting anything on Facebook beyond a picture of a puppy and a kitten sleeping together. 

Who amongst us hasn't put their foot in their mouth? We remember that intense argument that unfolded in front of a federal judge a decade ago where in the heat of the moment we blurted out (to the judge) "just shut up for a moment"!. Whoops. The judge was a friend and actually leaned back in his/her chair and laughed and we took a break and of course we apologized and life went on. 
But what if a media outlet was covering the case and went with the headline on Twitter or Facebook "Lawyer tells judge to shut up!" ?? Would we have had to face that reputation in court for the next decade or so? 

Isn't our authoring of this blog enough to wreck our professional reputation  when we reveal ourselves ?(To recap, we have agreed to reveal our identity upon appointment to any court at the level of the 3rd DCA or higher, win the lottery, or retire, resign from the Bar, and move out of state. Don't expect a revelation anytime soon.) 

Like our previous post on the Brian Williams saga averred, there is a vicious and perverse pleasure people take in using the anonymity of the internet to destroy other people for the slightest comment, tweet, or post, that does not completely conform to the norms of our social ethics. It's why we had the foresight to start this blog anonymously several years ago. 

So be forewarned. That Tweet about the size of someone's ankles, that Facebook page relaying the stupid joke you heard in the bar ten minutes ago after your fifth shot of tequila, may well end your career. Something to think about. 

No court tomorrow. 

Friday, February 13, 2015


It's a long way from the hallowed halls of clerking for a federal judge and the appellate division of the US Attorneys Office to the rough and tumble of the REGJB.  

Some people can take the rough and tumble and others crumble and flee for civil court or a quiet practice in a big firm. 

Judge Luck earned his stripes On Thursday when a mentally ill defendant attacked him and gave him a scratch and a lump on the back of the head. 

Tough Luck. 

Ricardo Garganelly. Unlucky. Attacked Judge Luck. 

The Herald and Ovalle have the article here. 

After the attack, Luck went to the sidelines where the trainer gave him some smelling salts, cleaned him up and then the Judge re-took the bench. Luck is tough. But tough in a good way.  We're glad the judge is OK. He's been on the bench a while now, and in fact he has a  campaign website up and running here  for his retention which we heartily endorse.  But you're never really an REGB judge until you've ducked a few punches or some contraband thrown at you while you're on the bench.  Well done judge. Well done indeed- and we're glad you're ok. 

Enjoy the long weekend. 

Thursday, February 12, 2015


What is it with apologies these days? They're never good enough. 
NBC News Anchor Brian Williams makes misstatements (here come the comments, so let us do it for you: "he lied", "he dishonored veterans", "we can't trust a journalist who lies", etc) about his experience in Iraq. Williams admits his mistake, calls it a "conflation" of two events, and Twitter and social media explode in a frenzy to the point where NBC has to suspend him for six months. 

Shouldn't "I'm sorry" be enough? 

Not in 2014. 

We say "Dwight David Eisenhower" and you think: "President", "Supreme Allied Commander in WWII", made the call of the century to send the D-Day forces in when his weathermen told him there would be a break in the weather sufficient to land his army. 
Do you think "Kay Summers" the young aide he had an affair with? Nope. That happened in 1942-44. 

We say "General David Petraeus" and you think…"Iraq & Afghanistan" commander; "Head of the CIA", "resigned in disgrace after having an affair."
As commander of the 101st Airborne Division, Petraeus was awarded the Bronze Star with the coveted "V" meaning with Valor  for his command decisions under fire during Operation Iraqi freedom in 2003.  But we remember Petraeus not for his competency or his heroics, but his foible in having an affair. 


Why do we today seek to drive any person of talent out of the Public Arena when their human foibles are exposed? 
Does having a marital affair disqualify you from leading troops in battle or heading a governmental agency, or being President or a member of the cabinet? 

Should Brian Williams' misstatements about his experiences in Iraq or Hurricane Katrina prevent him from reading the news off a teleprompter? Why do we care so much? 

Schadenfreude is the the feeling of pleasure derived from the misfortunes of others. The word is taken from German (one of our favourite languages, and literally means "harm-joy".  

The 2000's-2020 is the era of Schadenfreude.  It seems that the internet is almost a perfect tool to expose the flaws in anyone, and then drive wedges through those cracks until the person crumbles under the avalanche of criticism and mockery. 

We think the explanation lies in the cowardice and incompetence of the critics. Cowardice because their comments on social media can often be anonymous. And incompetence because the incompetent seem to derive a certain pleasure of dragging the competent down to their level. We see it in the comments section of this blog every day. 

The problem is that when we need a world leader; when we need someone to deal with global warming, the Russians in the Ukraine, the Chinese in the Pacific, religious extremists in the Middle East causing chaos and destruction, the best and the brightest of us will remain safely out of the limelight- unwilling to risk personal destruction as the cost of using their talents. 

It's a poor trade- the acceptance of unblemished but mediocre individuals in lieu of remarkable leaders who can't pass the personal morals test. And we are all the worse for it. 

Long weekend coming up. Enjoy. 

Wednesday, February 11, 2015


On Thursday the 3rd DCA will hear the appeal of  former FBI agent John Connelly en banc (literally "we the many are upset at those the few"). 

Background:  John Connelly was an FBI agent in Boston. 
For most of the 1970's, 1980's and 1990's the FBI was chasing the boss of Boston- Whitely Bulger and his Winter Hill Gang. 
During that time, it was alleged that Connelly became a member of Bulger's crime organization. Connelly was known,  in Boston lingo,  as "a worka". 

Bulger had his fingers in everything, including Jai Alai in South Florida. On orders from Bulger, Connelly and Steve "The Rifleman" Flemmi killed CPA John Callahan and Jai Alia owner Roger Wheeler. ("The Rifleman": Is that the best nickname for a hired killer or what?)

If you want to read the definitive book on Whitey Bulger, read "Whitey Bulger" By Boston Herald reporters Kevin Cullen and Shelley Murphy. 

In 2005 Connelly was tried in Miami and convicted. And that's when the problems started.  Connelly was convicted for second degree murder and the statute of limitations may have run on that charge.  Judge Stan Blake denied the motion for discharge post verdict, but then PD Appellate lawyer extraordinaire  Manny Alvarez joined the fight, never a good sign for a faltering prosecution. 

The 3rd DCA found the case so troubling that  Manny Alvarez had to file a writ of mandamus with the Florida Supreme Court to get them to issue a ruling.  The supreme court did just that, ordering the 3rd to issue an opinion. In May 2014, the 3rd ruled 2-1 in favor of Connelly.   Shepherd and Suarez for the majority (24 page decision). Rothenberg, dissenting (47 page dissent). 

We grant Connolly’s motion for rehearing, vacate the conviction and sentence in Case Number 01-8287D, and remand with instructions to discharge him because the trial
court impermissibly relied on an uncharged firearm to enhance the only crime for which he was convicted. Without the fundamentally erroneous reclassification, Connolly’s conviction for second-degree murder as a lesser included offense of

first-degree murder was barred by the applicable statute of limitation.

Reflect on that bit of spectacular lawyering for a moment. Alvarez, has, to use specialized legal vernacular, kicked some ass in this case. 

The state moved for an en banc hearing, and that rare procedure will take place this Thursday. All the seats at the 3rd are sold out, but you can watch it on the internet. 

Here's where it gets fun. Alvarez filed a writ of habeas corpus which is now in the Florida Supreme Court.  Alvarez wants his client out on bond, since the 3rd's original opinion didn't just reverse the conviction, but they ordered Connelly discharged. 

Last week the Florida Supreme Court issued an order requiring the prosecution AND THE 3RD DCA to file a response to the writ. 
Take a moment. Reflect on that. Yes, you read it correctly. The Florida Supreme Court has required the 3rd DCA to file a response to the PDs petition for a writ of Habeas Corpus. 

Petitioner has filed a petition for writ of habeas corpus. Respondent is requested to serve a response to the above-referenced petition. Further, because this Court has determined that it would be helpful to the resolution of this case to have the benefit of a response from the lower tribunal, the Third District Court of Appeal is requested to file a response as well. See Fla. R. App. P. 9.100(e)(3).

So who writes the brief for the 3rd DCA? If we were assigning it, we'd have Emas do it. He's the brightest of the bunch. 

Great job by Manny Alvarez. Is someone nominating him for the FACDL's Rodney Thaxton Against All Odds Award? 

See you in court. 

Monday, February 09, 2015


He was a county court judge, he was clerk of the courts, he was recognizable by his bow ties and fastidious appearances. He was Marshall Ader, an REGJB original, and he passed away at age 95 on February 6, 2015. 

Ader was instrumental in using video for bond headings, ending the parade of defendants back and forth across the street. Ader expanded traffic school as a way of keeping points off your license. As the Herald reported in their obit, he was knighted by Malta in 1962 for work he did as a treasury agent.  And finally, he was somehow involved in the wonderful 1800 club, which is long gone but well remembered. 

Marshall Ader was a true Miami original. He brought innovation and verve to our courthouse. He lived a long life and he has been missed and will be missed. Ader's impact on our courthouse and our community will be long remembered. 


Monday was a bit of a slow news day. More winter storms, Republicans don't like Obama, and …hmmm, oh yeah- the Chief Judge of the Alabama Supreme Court issued an order in violation of a Federal Court Judge setting off a legal crisis not seen since Governor Wallace stood on the steps of the University of Alabama and tried to block the entry of Vivian Malone and James Hood, while the US Federal Marshals and Deputy Attorney General Nicholas Katzenbach told Wallace to step aside. 
Wallace refused. Katzenbach called his boss, President Kennedy, who federalized the Alabama National Guard and Malone and Hood entered and desegregated the University of Alabama. 

Bama has a proud history of defying federal law, which continued Monday when the CJ of the Bama Supreme Court issued an order prohibiting judges and clerks from marrying people of the same sex, while the US Supreme Court denied a stay of the order of Federal Judge Callie V.S. Granade allowing same sex marriage in that portion of Dixie. 

Roll tide….


A reputation. Street cred.  "What do I want people saying about me?" 

Every new Judge at some point sits back and wonders what the lawyers are saying about them; what the lawyers are telling their clients.  And for reasons that baffle us, every new judge seems to strive for a reputation of being tough (there are some current exception, especially Judge De La O, who no longer can be considered new). 

First they go with the alliteration, the most famous being "Maximum Morphonious", the moniker of the late Judge Ellen Morphonious. For those judges not fortunate to have a surname beginning with M, they look for other ways to establish their reputation that they are tough.  Eventually they come up with one, and then they get smug, thinking they have thought of something no one else has. This great idea, they say to themselves, "will quickly distinguish me from the rest of the newbies. I will work way past midnight!" 

The quickest way to tell you're dealing with a new and inexperienced judge (who is worried about how others view them) is when they tell you they want to start voire dire around 3:30, openings at 7, and closings after midnight.  "This" the new judges tell themselves "will get the word out about me." 

Let us disabuse you of that notion. 
First, why strive to get the reputation of being a tough sentencer? After all you have went though to become a Judge, isn't "fair" the reputation you want to have? 
With the advent of minimum mandatories, there are more than enough cases to try. Being known as  tough is not going to get those cases to plea anyway, and quite frankly the lawyers don't discuss your audit numbers, so nobody cares how many cases you have open. 

Second, the unfortunate litigants held hostage to your desire to create a reputation pay the price for your ego. This is the most important day in their lives. They want a fair trial, with prepared and well rested lawyers and jurors who aren't falling asleep. Your desire to work the lawyers on the case past midnight as a way of somehow getting everyone to know that you are not to be trifled with will do nothing more than back fire- everyone will know you are scared of your own shadow with no confidence in your abilities. 

Third. Your staff will resent you to the point of hate. And trust us, a staff that hates you can make you life as a judge miserable. They don't get paid enough to work those hours. Some of them have second jobs. 

You new judges have been on the bench now for a month. You've been to "judge-school" where you were told that when you hold a lawyer in contempt it means you've lost control, and you were instructed on how to bang the gavel ("stiff wrist, bend at the elbow…"). 

People have lives. Trials should end between 5-6 p.m. 

Welcome to the bench. 

See You In Court. 

Friday, February 06, 2015


Casablanca: In case you're interested, he greatest movie of all time is on tonight, PBS, 9:00 p.m. Enjoy. 

Judicial investitures tends to be happy events. But dignified. Until now. 
The Judges of the Eleventh Judicial Circuit file in, robed, distinguished, the great legal issues of the day on their minds (Joes for lunch? That new sushi place in Midtown for dinner?). 

The Chief Judge calls the proceedings to order. Friends of the new judge introduce him or her. There is a spiritual moment, when prayer is offered for the judge to find the wisdom to rule on the difficult cases ahead. 

And then the Judge speaks. 

Such was the investiture today of Judge Veronica  Diaz. Yup, she made it to the bench despite the inherent difficulties of being named " Diaz" in Miami. And here's what she wants you to know: 
Her life has been great. A great upbringing. She flew to Miami with a stuffed animal of some sort next to her on the plane. Everything has been just fantastic. No Horatio Alger story her. Unlike some of her colleagues who scraped by on scholarships and grew-up in the projects and routinely heard gunfire in their neighborhood and took the bus to their first job in law because they didn't have a car, it's been a fairly easy ride for her. 

Good for her. Nothing wrong with that. 

And then, a first. 

Some Judges follow precedent, others set it. 
Judge Diaz is already in the latter category. 

Finishing her acceptance speech,  standing on the podium, the elite and power of Dade County law before her, she, to the best of our knowledge, took the very first ever….


Ed Cowart is rolling over in shame. 

Beautiful weekend. Enjoy. See you in court Monday. 

"And when you smile for the Camera, you know I love you better…." 

Thursday, February 05, 2015


UPDATE: Mr. Berger's funeral has been moved up and will start Friday at noon. 

Peter Heller sent out this email with the details. 
As Mr. Heller writes, Arthur Berger was a long time appellate attorney who served this community as a prosecutor and Assistant Attorney General. He was a mentor to many young attorneys and a brilliant appellate lawyer. The funeral is tomorrow. 

It is with a heavy heart that announce the passing of Arthur Berger.  Arthur was a dear friend, had a heart of gold and was one of the most brilliant minds I have ever known. He was a former assistant attorney general as well as assistant state attorney in the appellate divisions.  He loved the law and was in his glory when a novel legal issue was brought to his attention. He not only looked forward to such challenge, would dive head first into finding a solution based upon an obscure, yet logical legal theory, and would thrive as well.  He was so helpful to me both personally and professionally on so many levels and will sorely be missed; especially his wonderful, yet quirky sense of humor.   A consummate gentleman, everybody loved him; especially me.

Rest in peace my friend.  It was a honor to have known you and to have worked alongside you.

Arthur Berger’s funeral is scheduled for Friday, February 6th at 12: 30 PM
The location is :
Menorah Gardens
21100  West Griffin Road
Southwest Ranches , Fl. 33332
Their tel. is 954-434-1531
Call Menorah Gardens for directions


In 1932 John "Cactus Jack" Nance Garner was elected the 32nd Vice President of the United States. In March of 1933, before resigning his seat in the house, he became the second man to ever be Speaker of the House and President of the Senate on the same day. 
Garner is famous in history for describing the Vice Presidency as "not being worth a warm buck of ____" the final word being variously described by historians as "piss", "spit" or "shit". 

Now on to news of County Court.  Any resemblance to the above portion of the post and the following is purely coincidental. 



The JNC was in their own Beast Mode this past weekend, logging two full days of interviews on Saturday and Sunday.  They interviewed a total of 30 applicants for the two open County Court seats of Judge Gladys Perez and Judge Rudy Ruiz.

Here are the names they sent to Governor Scott:

To replace Judge Perez:

Laura Ann Stuzin
Diana Vizcaino
Gina Beovides
Jonathan Meltz
Karl St Hope Brown
Elijah A. Levitt

To replace Judge Ruiz:

Laura Ann Stuzin
Diana Vizcaino
Gina Beovides
Joseph Mansfield
John William Wylie IV
Alexander Spicola Bokor

The Governor has 60 days to choose the two replacements.  If you would like to weigh in on any of the finalists, you can contact Governor Scott's Office of General Counsel at 850.717.9310.


Monday, February 02, 2015


Kieran Fallon, superb lawyer, restauranteur, husband of Criminal Defense Attorney Rae Shearn, passed away today. Many of us knew Kieran was in the fight of his life. 

Bruce Fleisher has sent out tis email with details:

Friends and colleagues, it is with deep sadness that I inform you that our friend and colleague Kieran Fallon passed away early this morning. Rae Shearn, his wife and our friend and colleague, requested that I convey the following  details: 
VIEWING/WAKE Wed Feb 4 @ Stanfill Funeral Home 10545 South Dixie Highway 33156 7-9 PM: 

FUNERAL MASS Thurs Feb 5 @ 11AM Holy Rosary-St. Richard Church 7500 SW 152 St, Palmetto Bay 33157.  

Gathering to follow after funeral mass @ 899 Bella Vista Ave, Gables By The Sea.33156. 

I am certain that many of you will want to pay your respects to Rae & family. Kieran was a fine lawyer, special guy in every sense of the word, and I had the pleasure and honor of working with him for the past 25 years. He will be missed, and I hope to see you at the services. Bruce        


It was the best of times.
It was the worst of times.
It was the best of calls.
It was the worst of calls.

For all we dislike about the super bowl, which we wrote about yesterday, there is value in sports. The value is in the simple moments. The moments of truth. When the player confronts their talent, their opponent's talent, when their coach makes the call to put his or her team into position to win. Or lose.

Seattle Seahawks Coach Pete Carroll did both yesterday. As the first half wound down, with his team down by 7, six seconds left, a penalty putting them a dozen yards from a touch down. The safe play was to kick a field goal. Championships are rarely won by the safe play. Carroll called a pass play, his team executed and scored and rode the momentum of that play to a ten point lead by the fourth quarter.

Then the Patriots came back, and then, with an improbable pass reception, the Seahawks and their QB Russell Wilson found themselves down by four, at the one, less than thirty seconds left.

In Basketball, John Havlicek stole the ball. Then a generation later, Bird stole the ball. Jordan made last second jumper after last second jumper, and won six championships.

Mazeroski hit the first bottom of the ninth, game 7 walk-off home run in 1960, and a generation later in the World Series  Kirk Gibson limped to the plate and knocked one out of the park causing Vince Scully to memorably exclaim "I don't believe what I just saw!"

Sports are about those moments of the man or woman confronting their own short comings. The moment of truth when the player emerges and beats the better opponent- or fails and faces  a life time of "what ifs?"
There is no better example of a man confronting his fears than Ali, on the ropes for seven rounds in Kinshasa, Zaire, taking a pounding from the most terrifying opponent in the history of boxing, and then reaching deep inside and throwing the best right hand in boxing history. Ali beat Forman, but in reality, he conquered his fear and allowed himself to win.

Russell Wilson walked to the line of scrimmage as the seconds ticked down. He had timeouts to call if necessary. He had the best short yardage back in the game, and he had the athletic skill to run a yard and win a championship. Pete Carroll or his Offensive coordinator called a pass. The Patriots countered with a goal line defense- their largest players on the line to stop the run- but with a twist- cornerbacks positioned to stop the play-action pass.

Bobby Thompson hit the home-run and "The Giants Win The Pennant. The Giants Win The Pennant."

Wilson called the play and took the snap and stepped back to pass.

Mookie Wilson stood at the plate with two outs and his Mets one out away from losing the series in 1986 to the Red Sox in game six.

Wilson threw an interception when the game was on the line.

WIlson swung and sent a soft roller down the first base line, but improbably Bill Buckener let the ball roll through this legs when the Red Sox were on the verge of their first world championship.

That's why they play the game. And it wasn't a bad game at all.

Sunday, February 01, 2015


The Super Bowl has become a national holiday, morphing into a world-wide event. Good for the NFL, where players beat their families during their days off while recovering from head injuries that will make them drooling, limping morons at an age most men are tuning up their golf and tennis games. 

Here is the dirty legacy of the NFL: Chronic Traumatic Encephalopathy, a degenerative brain disease caused by repetitive brain injury resulting from being battered in the head sixteen weeks a year plus practices.  The recent list of victims:  Chicago Bear Dave Duerson who killed himself in 2011; KC Chiefs Javon Belcher, who killed his girlfriend and then himself last year.  And Junior Seau, who killed himself, and was honored yesterday by election into the NFL Hall of shame Fame.  Seau's price for admission into the HOF: a decade plus of violent hits that destroyed his brain and drove him to suicide. But, he has a bronze statute to glorify all those hits. He just won't see the ages of 50, 60, 70, and even if he didn't kill himself, his brain was wrecked. 

Do you get the impression that we are (mostly) done with football? 

A good football game is a fun thing to watch. A good football team going on a run to the super bowl can create a life time of memories for fans.  But this madness has gone too far, and we've had enough. 

Sorry to rain on your parade on this nearly religious day of national pride and celebration. 

There's a 20 kilometer  moderate mountain bike route in Moab, Utah, that we will be riding today while the nation gathers to worship at the NFL's trough. There's more to life than eating chicken wings and  drinking beer and watching ignorant athletes bash each other senseless.  We prefer the memory of cresting the hill of a long bike climb, to a Seahawks pick six. But that's just us. 

For those of you watching the game:

There has been a safety in the last three games. We think the trend will end today, so we wouldn't take the 6-1 odds. Although it would serve the world right if the game ended 4-2. 

Tom Brady scoring (meaning running the ball in or catching a TD pass) the first touchdown at 35-1 is a nice play. 

The Seahawks are -1. Take them. 

The over/under is 48.5, although we got a point less in Vegas earlier this week. We took the over and then parlayed it with the Seahawks to win. We will post a picture of the winning ticket later. 

Over 3 1/2 FGs- take the over. 4fgs wins, 3 or less lose. 

We like the pick-6 prop bet as well. Fact: team with a pick six in a super bowl is 12-0. So if, as we hope, Richard Sherman takes one of cheater-Brady's deflated balls to the house for six, good-bye Patriots. 

In A Superbowl, we will always pick the team with the better Defense. Bears, Ravens, Steelers, Giants, etc. It's why the evil genius and his cheating QB are riding an unenviable two game losing streak in the big game.  

The Seahawks are a well rounded team. Great Defense, a beast of a running game, a QB who can go deep while in the pocket or scramble for a first down and more. These are the types of teams that win two super bowls in a row- Cowboys of the early 1990s, Broncos of the later 1990s, the 49'ers in the 80s and the Steelers in the 70s- twice. 

There will be a point during the game today when we will get off our bike and sit in majestic silence, surrounded by desert and red dusty sandstone on Slickrock trail, and we will eat a sandwich (gluten free bread these days)  and drink some coconut water, and pull out a well worn copy of King Lear, and just rest and eat and read: 

Talk of court news; and we'll talk with them too,
Who loses and who wins; who's in, who's out;
And take upon 's the mystery of things,

The last thing on our mind will be some senseless game. 

But we will want to know if our one, lock-solid bet paid off: 

Coin flip: Heads. 

See you in court when we come back.