FROM JAILER TO JAIL

The story of former NYC police commissioner Bernie Kerik reads like a Shakespeare tragedy. 
An ultimate insider, vetted and nominated for a cabinet post in the Bush administration, Kerik ended up in a  federal prison for three years. 

Kerik's insight's into prison should be listened to by everyone, especially those in the criminal justice system. Especially his thoughts on prison and a minimum security prison: 
"The deprivation is far more profound than anyone could imagine….talk about a country club…go to the 4 Seasons in NYC and lock yourself in the bathroom for a year, and you basically die before your eyes and the whole world goes on without you, you tell me how luxurious it is?"
And this: "Every american should learn about the criminal justice system because anyone of you could become a target and you have no conception of what that means."




Other highlights: Rudy Guliani never even called his wife when Kerik was in prison, while congressman Peter King, chairman of the Homeland security committee came to see him in prison very three or four months. Talk about finding out who your friends are. 

THE DEFENSE CALLS….

The NY Times Magazine had a very informative article on the Colorado SuperMax prison and what solitary confinement does to an individual (it makes them go crazy). We strongly suggest you read it. 

The NY Times here also ponders the question of whether Dzhohkar Tsarnaev's attorneys will put him on the witness stand in the Boston Bomber trial? 

We have a new poll up. Lawyers are divided on this question of whether to put a client on the stand. Obviously, in federal court, the decision is more perilous because of the obstruction of justice enhancement. (For those of you who stay put in state court, as hard as it is to believe, the feds punish you even more for testifying and losing because they view it as an automatic proof of perjury). 

While we try to keep an open mind as we approach each trial, our view is that if we cannot be in a position to win with our cross of the prosecution witnesses and the use of defense witnesses, then we shouldn't be proceeding to trial. Put another way, we don't want a trial to rest on the testimony of our client. 

Putting a client on the witness stand changes the dynamic of the trial, mostly in favor of the prosecution. Our view is that no matter how weak the prosecution's case is, the jury will disregard the reasonable doubt instruction and focus on the defendant's testimony. A bad performance by the defendant can save the prosecution's case. A good performance by the defendant can weaken the prosecution's case. But it takes a stellar performance by the defendant to win a case, and most defendants don't have that in them. 

Yes, we know that you have to put the client on in a self defense case. This is not about those specialized cases. This is about your average criminal prosecution in Florida. 

We say the safer course is to handle the matter in voire dire. Get the jury to affirmatively buy in to the proposition that a client doesn't have to testify and they won't consider it if the client doesn't. Then, if the case is going well, keep the client safely seated next to you. 

What say you? 

See You In Court. 

SIGNS OF THE APOCALYPSE

The Sixth Seal – Signs In The Heavens

“I watched as He opened the sixth seal. There was a great Earthquake. The sun turned black like sackcloth made of goat hair, the whole moon turned blood red, and the stars in the sky fell to earth, as late figs drop from a fig tree when shaken by a strong wind. The sky receded like a scroll, rolling up, and every mountain and island was removed from its place. Then the kings of the earth, the princes, the generals, the rich, the mighty, and every slave and every free man hid in caves and among the rocks of the mountains. They called to the mountains and the rocks, “Fall on us and hide us from The Face of Him who sits on the throne and from the wrath of The Lamb! For the great day of Their wrath has come, and who can stand?” (Revelation 6:12-17)

A few Miami Dade Corrections busses got into a fender-bender on the way to court today. About 80 defendants missed their court dates. Corrections motto: "Neither rain nor sleet nor snow nor gloom of night shall stay these officers from the swift completion of their appointed rounds. But 836 might."

Miami Federal Judges are very hard working. As per Southern District Blog. Writing "denied" over and over is hard but fulfilling work if you can get it. 

Ultra is a back. 

Wicked is playing in a local theater. 

The Heat Stink. 

Passover is next week. We offer great blog props to the first lawyer who appears in court next week and tells the judge "let my people go." 

A tender religious moment? Or battery with a religious artifact (which is an enhancement)?

We leave you for this glorious spring weekend with the thought that for some of us, the weekend is just another work day: 

Kathy Rundle ‏@KathyFndzRundle  5m5 minutes ago

Tomorrow my staff will be at nner City Youth Enrichment Camp 2nd Annual STOP THE VIOLENCE & BRING PEACE Basketball Tournament @ Olinda Park.

(note the key words "my staff")

THE END IS NEAR

The blog is doomed.

From our friends at South Florida Lawyers comes this distressing news out of Tallahassee:

A dangerously misguided Florida bill would forbid websites from operating anonymously just because they meet a vague definition of disseminating “commercial recordings”—and it's headed for a vote this week

What would we do?

Putting aside for the moment the judges and lawyers we have unintentionally offended ("What do you call a thousand lawyers at the bottom of the ocean? A good start." ) there would be the plethora of bar complaints and the resulting grudges from judges, prosecutors and even our brethren defense counsel, so that we could never be sure if the decision to seek life in prison on the resisting arrest without violence case was a reaction to our running a mirthless and destructive blog, or an informed legal decision.

We couldn't risk it. We would have to shut the blog down. The great OZ cannot emerge from behind the curtain (you would all be so terribly disappointed).

The end is near. What a long, strange trip it has been.

Meanwhile, you can check out the ESPN website and your brackets,  ruefully peruse Mr. Markus's blog and read about the 1987 committee notes on the hearing to amend the federal rules of evidence on mandatory judicial notice. Plus all those nice pictures of judges at federal events.  And there are  Mr. Ovalle's tweets @davidovalle305 to keep you entertained:
"found a nice hotspot in the courthouse!"; "waiting for the judge, time for more black coffee";  and "the Padres lost again, time to watch the walking dead"

We're doomed.

See you in court.

KENNEDY SPEAKS OUT AGAINST THE CRIMINAL JUSTICE SYSTEM

The Wall Street Journal reported today that in surprising testimony yesterday before a House sub-committee, Justices Kennedy and Breyer spoke out against the state of affairs in the American criminal justice system.  Claiming that is was too harsh and that it locks up too many people, for too long.

Referring to our justice policy as being one of "total incarceration", Kennedy, usually a member of the court's law and order wing, stated that he believes that this policy is more harmful to public safety, than it is protective.  Kennedy stated he believed that other forms of community control would serve the public better.  For all the money we spend on prisons, we could provide more probation officers and programs to rehabilitate many offenders.  "Total incarceration just isn't working", Kennedy said.

Breyer added his two cents by coming out against minimum mandatories as being "a terrible idea."  The Republican chair of the sub-committee opened the door to this discussion during a routine budget hearing.

Wouldn't you like to have been a fly on the wall when these two arrived at the Supreme Court Building, and had to face Scalia and Roberts before oral argument this morning?  These two were sent to discuss budgets, not philosophy of sentencing.  

In my last post I discussed the effect of the recent decisions of the Florida Supreme Court in regard to severe sentencing of juvenile offenders.  Is this just one more step in the idea that we begin to rethink our justice systems need for incarceration?  Is it time to start thinking of alternatives?  Are we on our way back to rehabilitation as a goal?  If Kennedy is on board, then maybe . . . 

PICK YOUR JUDGE

California has long had a system in their criminal and civil courts that has fascinated us. When a case is assigned to a judge, a party (the prosecution-plaintiff or the defense) can file a motion to disqualify the judge pursuant to section 170.6 of the code of civil procedure. The lawyer must file an attestation that they or their client has reason to believe the judge would not be fair to their client. The case is then blind filed again. Each party can do this one time, and they do not need to provide any evidence to support their view and their motion cannot be challenged by the other party. 

This is a fascinating way of regulating judges.  Judges develop reputations. Some bad judges go out of their way to cultivate a reputation of being tough on crime. We can think of one judge within the last two decades who would brag in their chambers that they wanted to be known as "maximum _____" for the lengthy sentences they handed down. 

If Florida had this system, lawyers' opinions of judges would be evident in the statistics of disqualification. Some judges would have very few disqualifications (albeit high case loads). These would be the judges that the "market" deemed fair. 
Other judges would have high disqualification rates. These judges would be deemed unfair by the "market". 

It's almost a self regulating procedure. It might well influence judges to give the appearance of fairness (instead of the judge who recently tossed our motion to the suppress back to the clerk with disdain and élan while sneering "denied" ). 

What say you? 

Follow @davidovalle305 as he covers closing arguments in a murder case. Ed O'Donnell for the defense. Michael Von Zamft for the state. 

David OvalleVerified account‏@DavidOvalle305

After short deliberations, jury will return Tuesday to deliberate fate of teen in Miami Gardens carjack double murde

WHAT'S HAPPENING AT THE SUPREME COURT? 
"HOT SUTFF"








See you in court, where we wish we had one free bite at the apple of judicial disqualification. 

HORSING AROUND

"Danger invites rescue"  Justice Cardozo famously wrote in 1926 in Wagner v. International Railway.
And while Cardozo's words were most likely not cited in the discussions, the Dade State Attorneys Office, in a display of Equine Equanimity, decided not to file charges against Aventura resident  Adam Kuferschmied, who seeing danger, rescued Cowboy, a runaway horse, who was espied galloping through Avetura, fleeing the confines of the nearby racetrack, several police cars in hot pursuit.  Kuferschmied, a lifetime horse lover-nee whisperer- interceded  and calmed down the nervous nellie. While Cowboy was returned safely to his stall,   Kuferschmied spent the night at the Dade County Jail, where undoubtedly, his meal was worse than Cowboy's oats and hay. The charges: some nonsense about interfering with the police, ignoring orders of the police, etc. A bunch of horse-feathers if you ask us. 

Enter famed Miami Criminal Defense Attorney Kenneth "Tex" Weisman,  known to favor the fillies, a friend of animals in need, defender of the wrongfully accused.  Weisman didn't horse around. He took his case to the state, which, as David Ovalle in the Herald gleefully reported here, said "neigh" to filing charges.  

The facts were a horse-of-a-different color, all agreed.  "The case was a late scratch, it never made it to the starting gate" Weisman cracked to Ovalle. The odds were long that the prosecution would get a conviction, others whispered. "The case was a mudder" sneered one prosecutor not involved in the decision.  "Weisman was chalk all the way" said one criminal defense attorney in the know. 

And so we leave you, with Cowboy, Kuferschmied and Weisman all galloping off happily into the sunset, the charges dropped, alls well that ends well. 

HOPE FOR JUVENILES (AND LOTS OF WORK FOR OUR JUDGES)

In four separate unanimous opinions, issued yesterday, the Florida Supreme Court has addressed issues relating to the United States Supreme Court's decisions in  Miller v. Alabama, 132 S.Ct. 2455 (2012) and Graham v. Florida, 560 U.S. 28 (2010).  In the face of questions relating to retroactivity of SCOTUS' rulings that trial courts may not impose life sentences upon juveniles, and many trial court's circumventing that decision by sentencing juveniles to terms of years which are tantamount to life sentences, our Supreme Court handed down decisions relating with separate, but uniquely important issues.  The principal theory behind each of these cases is that to deny a juvenile a "meaningful opportunity at release" is a violation of the 8th Amendment prohibition against "cruel and unusual punishment."

In Falcon v. State, Case No. SC130865, the Court decided that the Miller decision was in fact applicable to juvenile offenders whose convictions and sentences were already final at the time Miller was decided, reversing the 1st DCA opinion in Falcon's case to the contrary.  Justice Pariente, writing for the Court, determined that Miller constituted a development of fundamental significance and a change which places beyond the authority of the state the power to regulate certain conduct or impose certain penalties.  Miller having satisfied all known tests for retroactivity, Miller applies retroactively.

In Horsely v. State, Case No. SC13-1938, Pariente and the Court double-downed on Falcon.  Eschewing the state's theory of statutory revival of the prior statute of life with parole after 25 years, the Court ordered that Chapter 2014-220 Laws of Florida, passed by the legislature in response to Miller, also has to be applied retroactively.

Henry v. State, Case No. SC12-578, the juvenile defendant was sentenced to 90 years for multiple non-homicide offenses.  The Court recognized that juveniles are a "special class of offenders" that require a mechanism for evaluating for demonstrable maturity and reform in the future because any term of imprisonment for a juvenile is qualitatively different than a comparable period of incarceration is for an adult.  Resultantly, Mr. Henry's sentence violate Graham, Miller, and the 8th Amendment.   Thus Henry was entitled to a full sentencing hearing and sentence in accord with Graham and Miller. The author of Henry, was Justice Perry.

Lastly, Gardine v. Florida, Case No. SC12-1223, also written by Justice Perry, applied this retroactivity to a trial court's attempt to circumvent Graham, a juvenile defendant charged with, and convicted of, Armed Robbery and Attempted 1st Degree Murder (the trial court interpreted Attempted 1st Degree Murder as a "homicide offense") and was given a 70 year sentence in a clear and unequivocal challenge to Graham's prohibition against life sentences.  The Court first called out the trial judge by applying prior decisions that Attempted 1st Degree Murder is not a homicide offense since no one died.  The Court then reversed the sentence because the sentence did not give the Defendant a "meaningful opportunity at release".

Henry relied upon Horsely.  Gardine relied upon Henry.

The appropriate remedy is for all effected juveniles to seek relief under Rule 3.850.  The remedy is to include a full sentencing hearing before the trial court, and to be sentenced in accord with decisions handed down with Falcon.  You can be sure that this means a lot of work for our judges, many of whom are not guilty of imposing these illegal sentences, but are now charged with applying the remedy.  To be sure, some will try hard to avoid the tough calls that need be made, and our DCA's will be busy correcting those attempts, but in the end they will get it right.

These are significant victories for the offices of the Public Defenders who fought so hard and valiantly to gain hope and justice for these, and all juveniles, in our prison system, who have been sentenced to life or  long terms of incarceration tantamount to life terms.  Maybe the idea of warehousing another whole generation of youthful offenders, a large majority of which are of color, has ended, and the ideal of rehabilitation may yet see a revival.

ELECTION CENTRAL: WHO'S RUNNING FOR JUDGE IN 2016 ..... UPDATED

THE CAPTAIN REPORTS:

NEW CANDIDATE FILINGS FOR ELECTION 2016 .....

In our post dated January 26th, we discussed the first filings for the Judicial Election of 2016.  At that time, Judge David Young had filed to run in retiring Judge Rodriguez Chomat's Group 39 seat.  On the same date that Young filed, attorney Oscar Rodriguez-Fonts filed to run in the same Group.  Before I was able to finish writing the post, attorney Carol "Jodie" Breece filed to run in Group 52, the group of retiring Judge Michael Genden.

Well, in the past few days, things got much more interesting.  Where do I begin?

David Young is still running for Judge, and he is still running in Group 39; but now, nobody is running against him.

As for Group 52, it just got very crowded, with four candidates having filed in that Group.  Jodie Breece is still in the group, and she is joined now by Oscar Rodriguez-Fonts, who filed papers with the Elections Commission switching from Group 39 to Group 52.  Joining Breece and Rodriguez-Fonts are:

Elena Ortega-Tauler.***  Ms. Tauler has been a member of The Florida Bar for 26 years.  She runs a solo practice and specializes in the field of Immigration Law.  Now, I have not had the pleasure of meeting Candidate Tauler, but if she has ever read my columns on this Blog, then she would have known that this was coming.  You see, there is no Elena Ortega-Tauler that is a licensed attorney in the State of Florida.  There is an Elena C. Tauler.  And Ms. "Tauler" even has a web site for her law firm.  I read through the dozen or so pages on that web site.  Do you think I found any, even one, reference to her being called "Ortega-Tauler"?  NO.  NADA.

Not only does Ms. Tauler list her name on The Florida Bar's web site as Elena C. Tauler, but we were also able to find that the home she apparently lives in, in the City of Doral, has her name on that deed as Elena C. Tauler.  Also, there are no less than 24 corporations listed on Sunbiz where Elena C. Tauler is either an Officer and/or the RA.  And, check the no less than seven documents that Tauler filed with the Florida Division of Elections in Tallahassee when she filed to run for Judge; all seven have a signature that clearly appears to read "Elena Tauler".

Why Ms. Tauler do you feel the need to attempt to pull one over on the voters of Miami-Dade County?  Why are you running for a job where the public expects nothing less than for you to be the class of judgment and professionalism; yet your first act in running for Judge is one of deceiving the public by adding the name "Ortega" to your last name?  We have outed several potential judicial candidates in the past on this Blog; you are not the first, and you most certainly will not be the last.

If you are going to run for Judge under the name "Ortega-Tauler", then at least have the decency to use that same name in the Member's Section of the Florida Bar web site and change your name on your own law firm web site so it reads "Ortega-Tauler".

***Addendum***. Thank you to Wannabe Captain.  That commenter reminded me of a post I scribed on April 24, 2008, that can be found here. Now I remember how I earned my reputation.  Six and one half years ago I first reported on Ms. Tauler when she filed to run against Migna Sanchez Llorens.  (Shortly after my post, Ms. Tauler withdrew her name from the race). In that post, we alluded to the fact that Ms. Tauler had been recommended for Disbarment by The Florida Bar, but the Supreme Court overruled that recommendation and Suspended her for three years.  We also made mention of the more than 30 lawsuits Ms. Tauler was a party to in Miami-Dade County.  Please take the time to review our earlier post and thanks again to Wannabe Captain for the reminder.

Raul Alberto Perez-Ceballos.  Mr. Perez-Ceballos has been a member of The Florida Bar for 12 years.  He has a solo practice and specializes in the field of Family Law.  He was interviewed by reporter Julie Kay for the Daily Business Review recently and he indicated that: "I like to read, and I like to write," ...... "That's why I want to be a judge."

Perez-Ceballos had this to say about the crowded field in Group 52: "This could be a record," .... "I've seen a three-way race but I've never seen a four-way race go through."

Raul, Raul.  Yo soy El Capitan!  The Captain only has to go back to Election 2004 to recall that Don Cohn, Catherine Parks, William Thomas, and Josie Velis ran for Judge in the same Circuit Court Group.  Or, how about Election 2002 when Alexander Akpodiete, Xavier Cortada, Raul Ordonez, and Sarah Zabel ran in the same Group.  Or, Election 2000, when Gina Mendez, Dennis Murphy, Martin Zilber, and Peter Sylvester Adrien ran for Judge against each other.  For 100 points, who won each Election?  And for 50 bonus points, who was in each of the Runoffs?

So, what can you take away from this post?  Well, for one thing - read the DBR and end up with quotes like "I like to read and write; that's why I want to be a judge".  Read Rumpole's Justice Building Blog with crack political reporter El Capitan, and you get the story behind the story; Ms. Tauler!

That's your Election Central update for our Judicial Elections 2016.

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

PER CURIAM

"Traditionally it may be pointed out that a ‘per curiam’ is the opinion of the court in which the judges are all of one mind and the question involved is so clear that it is not considered necessary to elaborate it by an extended discussion."

Newmons v. Lake Worth Drainage Dist., for Use & Benefit of Martin, 87 So. 2d 49, 50 (Fla. 1956).

In Vega v. State, which was a sexual predator  incarceration hearing in which the defendant's sentence had expired but the State still sought to keep the defendant in custody, there was a trial in which the jury's verdict was that the defendant should not be held in custody for any further period. 

The judge promptly ignored the verdict and ordered the defendant into custody. 

The defendant appealed. 

Seems pretty serious. A case of first impression for sure. Ripe for a well reasoned opinion setting precedent for the State. The type of case appellate judges presumably fight each other for the right to write the opinion. 

And the 3rd DCA in Vega v. State did this: "Per curiam, affirmed." 

here. 

For those non-lawyers who read the blog, "per curiam" does not mean "we punt", or "scaredy cat", or anything other than what is stated above. 

So here is what we have- a decision of a trial court incarcerating a defendant who has served his sentence and against the verdict of the jury. 

We have the Fifth Amendment to the Constitution of the United States which says, inter alia, that no person shall be deprived of life or liberty without due process of law. 

And we have the 3rd DCA which says "per curiam, affirmed."

Puzzling. Truly puzzling. 

See You In Court. 

MARCH MADNESS

We know nothing about college basketball. We stopped caring when the NYU Violets were caught up in a betting scandal. (Google the scandal to figure out how long ago that was). 

So we're only going to address this once. Manhattan is in the play-in game. Once they secure the 16 spot, it's an easy ride to the final four. And Ohio. And Texas. And Villanova. Or Kansas. That's that. 

Turn your attention to our humble courthouse- the REGJB. 
What's your example of March Madness? 
5 year plea offer on resisting with? 
Revoke all plea offers if you ask for an arthur hearing or discovery or take a depo or file a motion? 
"We know your client is probably innocent, but our supervisor said to let the jury decide." 

There's madness in our REGJB, and we aim to expose it. 

Have a good week. 
See You In Court. 

PI DAY

3.14.15

and just before two pm today, at 3.14159 

(March 14 1:59 p.m) …

we may just geek out and have a piece of pie. 

Enjoy your spring saturday. 

GOV. SCOTT PICKS TWO NEW JUDGES .....

THE CAPTAIN REPORTS:

AND YOUR TWO NEW COUNTY COURT JUDGES ARE ......

Late this afternoon, Governor Scott chose two new Miami-Dade County Court Judges.

LAURA ANNE STUZIN, replaces Judge Rudy Ruiz.  She has been a member of The Florida Bar since 1994.  She joined the State Attorney's Office that year and spent four years as an ASA here in Miami.  She then spent two years working for Coffey, Diaz, & O'Naghten before joining heavyweight Rumberger, Kirk in 1999.  She has been with that firm for the past 15 years.  She currently practices in the areas of casualty defense, criminal defense, construction defect, professional liability and product liability. 

According to Rumberger Kirk's web site, it states: "With more than nineteen years of experience, Laura’s practice includes representing clients in premises liability matters involving claims of slip and fall, general negligence, inadequate security and malicious prosecution in cases seeking damages for personal injury, wrongful death and damage to personal and real property and criminal defense. Laura also practices in catastrophic casualty defense which involves handling claims related to the operation and safety of commercial trucking equipment. She has represented clients throughout Florida in general casualty defense including automobile accidents, trucking accidents and other casualty claims involving catastrophic loss and wrongful death."

DIANA VIZCAINO, replaces Judge Gladys Perez.  She has been a member of The Florida Bar since 2000.  Like Stuzin, she began her career as an ASA in Miami and she spent five years with that office.  She then joined Boyd, Mustelier, Smith and Parker for two years and then the U.S. EEOC for one year.  In 2008, she took a job as an Assistant City Attorney for the City of Miami where she has spent the past seven years.

According to the Miami City Attorney's web site, it states that Vizcaino : "is currently the Division Chief of the Labor & Employment Division. Ms. Vizcaino represents the City in employment litigation matters, arbitrations, collective bargaining and formerly the Civil Service Board. Ms. Vizcaino is also the Recruitment and Internship Coordinator responsible for all new hires, internships, and consultant engagements."     

TO DIRECT FILE OR NOT TO DIRECT FILE - THAT IS THE QUESTION .....

On March 3rd, we posted on the opening of the Spring Session of the Florida Legislature.  Two of the bills we focused our attention on included HB 195 and SB 444, both bills relating to the Prosecution of Juveniles.  Today, Miami-Dade Public Defender Carlos Martinez penned an excellent Op-Ed in the Miami Herald titled: Public Defender: Don’t put kids in adult prisons.  It is a must read and let's hope the legislators up in Tally read it too.

ANOTHER WEEKEND IN PARADISE .....

Another great weekend is in store for South Florida and on Saturday you can take in the first ever E-Grand Prix.  What is an "E" Grand Prix you ask?  That would be the world's first fully electric racing series; the Formula E Grand Prix is on its fifth round of competition and will make its Miami debut Saturday on Biscayne Blvd.

And on Sunday March 15th, it's the world famous, or infamous, 38th Annual Calle Ocho Festival.
   
CAPTAIN OUT .....
Captain4Justice@gmail.com

AND THEN A HERO COMES ALONG...

This was the email sent last week by PD Kevin Hellman:

Huge congratulations to APD Sara Yousuf and former APD Amy Weber for getting Judge Miguel DeLaO to grant their postconviction Motion to Vacate Judgment and Sentence yesterday winning a new trial for their client who had been convicted in 2013 of 2^nd Degree Murder, Attempted 1^st Degree Murder and Possession of a Firearm During Commission of a Felony.

This was an incredible victory that is a testament to the perseverance, commitment, legal skill and creativity of Amy Weber and Sara Yousuf.  They put in months of work preparing this motion, tracking down witnesses, conducting the hearing and making outstanding argument to get a wrongfully convicted man freed.  They interviewed witnesses and pulled jail calls and phone records, among myriad other work, to essentially prove that someone else committed the crimes charged. 

To his credit, Judge DeLaO heard all testimony and recordings with great patience and attention and wrote the most thoughtful and detailed order I’ve seen (35 pages worth) to fairly grant a postconviction motion based on newly discovered evidence of actual innocence and Brady violations by the prosecution. 

Truly amazing!

Public Defender Pride!!

Here is the order:

 The Heroes?
There are a few here. First, for perseverance and for never quitting on their client, Sara Yousuf and Amy Weber. Yousuf and Weber  have set the bar for  what criminal defense attorneys should strive to be. Never quit, never surrender, never never never. Well done, well done indeed. They are the truly the best of the best for doing what they did. They saved a man's life. Take a well deserved bow. 

Judge De la O, who heard the trial is also a hero here. As he pointed out in his extremely thoughtful motion, the judge denied the motion for judgment of acquittal and sentenced the defendant after the trial to fifty years in prison. But as the judge points out, "facts matter." And it takes a very big person to change their mind when the facts change. It takes a person of wisdom and experience and who is dedicated to nothing more than the simple concept of justice.  In summary, it takes a judge, a real judge, to do what Judge De la O did. 
There is a well thought out discussion of the problems with eyewitness testimony that every judge and prosecutor should read. The prosecutors probably won't, but judges should. At least, real judges should. 

And then a hero comes along….

I'M SORRY

Choosing between the two, we're going to go with the "I'm sorry song". Big fans of Calvin and Hobbes. Not so big a fan of the other….

see you in court. 

CALIFORNIA DREAMING….

California, the promised land. Tinsle-town.  Beverly Hills. San Fran. 

They have all lost their minds. Maybe it's the drought, because it can't be something in the water. 
We came across two stories this weekend, one worse than the next. 

In the first story, a California prosector, one Robert Murray, Esq., was assigned to handle an L&L case involving a child. As plea negotiations heated up between the prosecutor and the PD-with the defendant denying guilt- the prosecutor turned over a transcript of the defendant's interrogation - and ADDED these lines, although the defendant didn't say them:

“[DETECTIVE]: You’re so guilty you child molester.
“[DEFENDANT]: I know. I’m just glad she’s not pregnant like her mother.”

California has laws similar to Florida, and the effect of the added lines essentially made the case a capital sexual battery case (one in which the victim was penetrated), substantially raising the stakes and putting pressure on the PD to get his client to take the current deal and avoid the substantially more serious charges. 

The PD asked for the CD of the interrogation, and on the day of trial when it was finally handed over -with the gig up- the prosecutor disclosed that he had added the lines "as a joke." 
The judge was not amused.  Finding egregious conduct by the prosecution, the Judge dismissed the case. 
Here's where it gets disturbing. 
The prosecution appealed, taking the position that anything other than physical violence to the defendant did not constitute egregious conduct sufficient to warrant dismissal. The California AG's office is vigorously defending the conduct of Mr. Murray, who currently remains a prosecutor. 
(h/t and the full story is recounted at Scott Greenfield's Simple Justice Blog here.)

Truth is stranger than fiction. 

JUDEN.
The German word for "Jew" still carries an almost chilling connotation. A sneer. A curse. An accusation that one, by virtue of their faith, is less than human. 

UCLA is a major university. A well respected institution of higher learning. UCLA has a Judicial Board which acts as a Supreme Court for the Student Council. Rachel Beyda, a sophomore who wants to be a lawyer someday, applied for a position on the board and she was interviewed. Here are the questions she was asked, and keep reminding yourself this happened at a well respected University in a major American city:

Q: “Given that you are a Jewish student and very active in the Jewish community,” Fabienne Roth, a member of the Undergraduate Students Association Council, began, looking at Ms. Beyda at the other end of the room, “how do you see yourself being able to maintain an unbiased view?”
For the next 40 minutes, after Ms. Beyda was dispatched from the room, the council tangled in a debate about whether her faith and affiliation with Jewish organizations, including her sorority and Hillel, a popular student group, meant she would be biased in dealing with sensitive governance questions that come before the board, which is the campus equivalent of the Supreme Court.

The NY Times article on this disgusting display is here. 

Put another way, the questioning amounted to this:

"Considering that you are a Jew, how can you be fair?"

Considering that you are black, asian, catholic, a woman, a homosexual, a gypsy, physically handicapped, ….pick your suspect class…how can you be fair like the rest of us? 

How indeed? 

So lets recap the news from California: 

Prosecutors intentionally manufacture evidence of the most despicable type (intercourse with a child) and the Attorney General's office defends their actions on appeal. 

Meanwhile at one of the State's premier Universities, being a Jew leads to suspicions of being unfair. They might as well have accused her of being cheap and a money lender as well. Disgusting. Truly, utterly disgusting. 

Welcome to California, 2015. 

See You In Court. 

Tomorrow: A couple of PDs and Judge De La O….and then a hero comes along….

THE FUTURE, FORTY-FIVE YEARS AGO.

Before there was Starbucks and iPhones, before there were laptops and iPads, before there were PCs and Microsoft Windows, indeed, before Gates and Allen met and created DOS, there was the Hamilton watch company in Lancaster, PA, making what they described as a "computer time piece." The technology was remarkable, grounding breaking for its time, causing celebrities like Johnny Carson to stare at it in wonder. When the Pulsar LED digital watch was introduced, it was ground breaking and sui generis- people stared at it as if it was from another planet-or time- and indeed it was from another time- a time twenty years hence. 

This is a remarkable video we stumbled upon. The first two minutes are amazing, the first fourteen or so are the commercial for the "computer" and the remaining part of the video consists of film clips of people in 1970 staring at the thing from the future in wonder. If they only knew then what the world had in store for them…..

The Pulsar retailed for $2,500.00, or $400 more than you could buy a new car for at the time. 

AND YOU THOUGHT BROWARD JUDGES HAD PROBLEMS…?

The Professor presents:

What is about Central Florida judges?  Is it something in the water or Mickey Mouse syndrome.  How many have to go down before they learn that everyone is watching?

First there is Polk County Court Judge Susan Barber Flood.  This situation is confusing.  It all started when the JQC and the Sheriff were investigating wrongdoing by another judge in falsifying time records of his Judicial Assistant.  In the process of the investigation, the suspect JA made allegations regarding Flood and her bailiff (a deputy Sheriff) name Bubba.  (Yeah you read it right.  She was involved with a guy named Bubba.)

The JA alleged that the "fraternization" involved a sexual relationship, which she claimed she witnessed.  When the JA submitted to a polygraph, it indicated deception (polygraph talk for she lied). The JQC proceeded and Flood has been publicly reprimanded.  Flood agreed that she “entered into an inappropriate relationship with her bailiff,” which was described as a "friendship" that "went beyond the fraternization that normally occurs in a professional workplace context."

I don't think I am doing the case justice, so here is the link to a news article about the case and the opinion ordering the reprimand.

  

Then there is the story of Circuit Judge Jessica Recksiedler from Seminole County.  While on her way to a 5thDCA JNC interview she received a ticket for speeding (87 in a 55 mph zone).  Now, that in itself is nothing important, except she had a horrible driving record that included several speeding tickets.  (How does a judge get several tickets?) She knew her driving record was a problem, and would be asked about it.  When she was asked whether she had any tickets "this year", she lied and said "no."  (This is minutes after having received the ticket for 87 in a 55)  A JQC investigation resulted in several charges of deception to the JNC.  Now, she has agreed to a public reprimand.  The recommendation is pending Fla. S.Ct approval.

Link to the article: 

Lastly the story of Seminole County Court Judge Debra Krause.  She has two complaints pending. The first she has admitted for falsifying her campaign contributions report by claiming a gift from her husband of $82K was a loan.  Then came number two.  A complaint that she wrote a post on her Facebook page denouncing her husband's opponent during his unsuccessful bid for a Circuit Court seat.  She has attempted to consolidate the complaints for a single punishment, and the JQC has denied that request.

Link to the story:  

The warning here to all you would be judges:  (1)  Stay off of Facebook; (2)  Drive properly, and, if you don't, make sure you get withholds or dismissals; (3) Don't lie on your application or at your interview; especially if there is someone on the panel who does not like you; and (4)  If you get there, keep your hands to yourself. 

CHIEF JUDGE SOTO RE-ELECTED, AND MORE

THE CAPTAIN REPORTS:

LA JEFA JUEZ SOTO .........

Congratulations go out to Judge Bertila Soto as she was elected, unopposed, to a second term as Chief Judge by the Eleventh Judicial Circuit's 123 County and Circuit Court Judges. 

Judge Soto has come a long way from her days as a young ASA when she joined that office in 1989.  She was elected to the County Court bench in 1997 and later appointed to an open seat on the Circuit Court in 2002 by Governor Bush.  She was first elected to the position of Chief Judge in 2013.

YOUR NEXT TWO COUNTY COURT JUDGES .......

Have not yet been chosen.  You still have time to contact Governor Scott's office and weigh in on who should, or should not, be chosen to replace Judge Gladys Perez and Judge Rudy Ruiz for the two open County Court seats.

The Governor has the following names before him:

To replace Perez:

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

To replace Ruiz:

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

The Governor has until April 3rd to make his selections.  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.

NORTH OF THE BORDER ...........

The JNC got busy with naming a replacement for Judge Giselle Pollack, who recently resigned from the County Court bench.  Today they sent six names to Governor Scott, including:

Nickolaus Hunter Davis
Donald Gelin
Michele McCaul Ricca
Nina Weatherly Di Pietro
Ernest Kollra
Richard A. Sachs

What some may describe as a controversial decision by the JNC, in Broward County (said it ain't so), is the inclusion of Nina Weatherly Di Pietro, on the short list.  It appears that Ms. Di Pietro has the distinction of having been fired from the Broward County Public Defender's Office by Howard Finklestein.  Anyone who has ever served as an APD knows how truly difficult it is to get fired from that job.  The Sun Sentinel covers all of the controversy here and here.

LOVING SOUTH FLORIDA ............

It's March and that means sunny and breezy days living in our tropical paradise with outings to watch international golf at Doral, international tennis on Key Biscayne, and international auto racing on the streets of Biscayne Blvd.  And, of course, every criminal defense lawyer's dream weekend, ULTRA.  Lots of new misdemeanor and third degree possession cases soon to fill your office stockings.

Enjoy the rest of your week.

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

THE FLORIDA LEGISLATURE IS NOW IN SESSION

THE CAPTAIN REPORTS:

OYEZ OYEZ OYEZ, THE FLORIDA LEGISLATURE IS NOW IN SESSION .....

Today begins the annual migration to Tallahassee for the 160 elected legislators, (120 in the House and 40 in the Senate) as the two chambers decide how many more laws they can pass in just 60 days.  The Spring Session of the 2015 Legislature begins with the banging of the gavel at 10:00 AM this morning.  The House and Senate go into a joint session for Governor Scott's State of the State at 11:00 AM.  The Spring Session is scheduled to end on Friday, May 1st.

During the next 60 days, your elected leaders will consider dozens of bills that could have a direct affect on the criminal justice system.  Here is just a sampling:

HB 0001 Relating to Texting While Driving

Revises penalties for violations of Florida Ban on Texting While Driving Law; provides enhanced penalties for such violations when committed in school zone or school crossing; removes requirement that specified provisions be enforced as secondary action.

HB 0009 Relating to Use Of Wireless Comm. Device While Operating a Motor Vehicle

Provides that vehicular manslaughter includes causing death of human being or unborn child while operating motor vehicle & using wireless communications device.

SB 0090 Relating to Jury Composition

Requiring a 12-member jury for life felony cases, etc.

HB 0121 Relating to Employment of Felons

Provides corporate income tax credit for employment of person previously convicted of felony;

HB 0131 Relating to Use of Intercepted Wire or Oral Communications as Evidence

Creates exception to prohibition on use of intercepted wire or oral communications as evidence for prosecutions for acts of sexual abuse involving certain minor victims.

SB 0134 Relating to Lifetime Electronic Monitoring of Sex Offenders

Establishing the lifetime electronic monitoring program within the Department of Law Enforcement; requiring the implementation of an electronic monitoring system to monitor sex offenders sentenced to lifetime electronic monitoring;

HB 0139 Relating to Sentencing in Capital Felonies

Requires that advisory sentence of death be made by unanimous recommendation of jury after defendant's conviction or adjudication of guilt;

HB 0195 Relating to Prosecution of Juveniles

Revises age-based criteria & offenses for which discretionary direct file of information against child may be made in adult court; prohibits filing of information on child otherwise eligible if it is child's first offense unless there are compelling reasons;

HB 0235 Relating to Restitution

Requires child's parent or guardian, in addition to child, to make restitution for damage or loss caused by child's offense;

HB 0267 Relating to Confidential Informants

Requires law enforcement agency that uses confidential informants to adopt policies & procedures providing reasonable protective measures & requires agencies to refer certain prospective & current informants to substance abuse prevention or treatment;

SB 0276 Relating to Arrest Booking Photographs

Prohibiting a person who publishes or disseminates an arrest booking photograph through a publicly accessible print or electronic medium from soliciting or accepting payment of a fee or other consideration to remove, correct, or modify such photograph;

HB 0289 Relating to Boating Under the Influence

Provides that conviction for BUI be recorded in person's driving record; provides that convictions for BUI are considered prior convictions for DUI; provides that conviction for BUI be reported to DHSMV; provides that convictions for DUI are considered prior convictions for BUI.

SB 0440 Relating to Contraband Forfeiture

Requiring that seizure or forfeiture of property be incidental to an arrest under the Florida Contraband Forfeiture Act, etc.

SB 0444 Relating to Prosecution Of Juveniles

Revising the age-based criteria and the offenses for which the discretionary direct file of an information against a child may be made in adult court; prohibiting the filing of an information on a child otherwise eligible if it is the child’s first offense unless there are compelling reasons,

SB 1176 Relating to Recreational Marijuana

Renaming the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation; creating provisions relating to recreational marijuana; exempting certain activities involving marijuana from use and possession offenses; authorizing persons age 21 and over to engage in certain activities involving personal use of marijuana in limited amounts;

SB 1192 Relating to Penalties For Driving Under The Influence

Providing that a court may order a transdermal monitor device or treatment program, or both, in lieu of an ignition interlock device

HB 4019 Relating to Use of Force

Deletes provisions specifying that person has no duty to retreat & has right to stand his or her ground & meet force with force in certain circumstances.

If you would like to track any of these bills, you can go here and view the history of the bill.

NORTH OF THE BORDER .....

You may recall that some of Broward County's robed ones have recently been reported to have had a drinking problem.  One of them, Circuit Court Judge Cynthia Imperato, was found guilty of DUI last December following her trial in Palm Beach County.  In that case, she was sentenced to One Year of Probation with twenty days of House Arrest.  This was Imperato's second DUI as she was previously convicted in 1988.

Now, the JQC is recommending a 20 day unpaid suspension, a public reprimand, a $5,000 fine, and alcohol treatment.  Judge Imperato has agreed to the recommended penalties.  Now it is up to the Florida Supreme Court to decide whether to accept the stipulation.

The DBR covers the entire saga here.

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

MARCH COMINGS AND GOINGS

March is a month of comings and goings. 

Coming: Israeli Prime Minister Benjamin Netanyahu, who will be addressing a joint session of congress. 

Going: Attorney General Eric Holder. 

A PERFECT TIME:
If you are a long time Miami resident, then if you watch one thing on television the next few weeks, try and catch  "The Perfect Backfield" on the NFL channel's A Football Life series. The show is about, of course, Larry Csonka, Jim Kiick, and Mercury Morris, and right towards the end, when Morris talks about his trafficking in cocaine conviction, there is some rare courtroom footage of Judge Morphonious and ASA George Yoss. Morphonious of course, gave Morris a prison sentence and then famously said "Sorry Merc". Thankfully, the conviction was completely overturned on appeal.   There's also a lot vintage 1970's film clips of Miami at the time, including the famous clip of Csonka and Kiick riding horses down Collins Avenue as Butch Cassidy and The Sundance Kid (if you didn't live down here then, you won't understand the meaning). 

And so another week starts. See You In Court. 

THE MIAMI HERALD DOES IT AGAIN!

Miami, really all of Florida, is lucky to be served by a crusading and muckraking newspaper like the Miami Herald. And today, the Herald has really outdone itself again. 

The Herald broke this shocking story, which we are sure has all of you gasping in shock and surprise:

Florida's prison system is underfunded!

"NO!" you must have shouted in pure disbelief. "Say it ain't so Joe!"

And yet, sadly, it is. Our prison system is underfunded.

Read the story here, and weep. 

In other shocking news, the Herald is reporting that spring is on it's way, the Republicans and Democrats aren't getting along, Miami has beautiful beaches, and cell phones are here to stay. 

We are so lucky. Really. 

Enjoy your Sunday.