Monday, November 30, 2015

2075 or 1955

UPDATE: So this is spinning out of control fast. 
The Defendant apparently had a list of priors. He was apparently on probation for a lot of cases. He was stopped for DWLS and at least one email stated there was a gun in the car. 

SO....assuming the worst... should a judge warehouse a defendant for sixty years for a non-violent violation of probation? 

Rumpole says-sixty years is still outrageous. We know that as people age, they age out of violent behavior. So even if this was a dangerous individual in his early twenties, a sentence of twenty or or twenty-five years AT MOST seems more appropriate. 

Now here's a more normal Broward post. 

Broward Judge Matthew Destry violated the probation of a young African America man last week for DWLS (in some reports its an NVDL, but we're giving him the benefit of the doubt.) 

He sentenced the young man to sixty years. 
60 years. 
More than half a century. 

He looked at this young man on probation and decided that for the crime of not having a valid driver's license he should stay in prison until 2075. 
Or look at it this way. If he had sentenced this young man in 1955, and he got out now, he would say- "yeah, that's about the right amount of time for someone to be in jail for not having a valid DL."

It's an outrage. 

There are various petitions floating around the web to seek this Judge's removal, and rightfully so. Anyone with the power to sentence a person who sends them to prison for sixty years for a non-violent offense should be removed from the bench. 

Nothing on the Broward Blog about this by the way. 

See You In Court. 

Saturday, November 28, 2015


They've re-made Point Break. Really? We needed another Point Break? Why tinker with a classic?

The Super Bowl rematches continue with the Steelers visiting the home of Starbucks and the Seahawks.  The o/u is 44 and the Steelers are getting 4.5. We like the over and the Steelers getting points coming off the bye week. But since the NFL has been trying to rematch super bowl games of years past, shouldn't the Steelers have played the Cowboys, since they've met three times in the SB?

Tampa Bay at Indy- over 45.

 Arizona at San Fran. We like the visiting red birds against the struggling miners -7.5.

Cheaters at Denver. Is this the week? Maybe. Broncos and Orange Crush -1.

See You In Court Monday.

Thursday, November 26, 2015


Facebook killer found guilty of second degree murder. 
The defense did an admirable job in the face of very difficult evidence. Second degree was probably the best they could expect. And in Florida's messed up (we wanted to use a curse work) criminal justice system, the defendant can be sentenced to the same sentence as first degree murder. Which means, while the law recognizes a difference in why people kill, Florida says lock them all away for life. 
Coming soon: life for manslaughter and culpable negligence. 

Things we don’t like about Thanksgiving.
An overload of emails from vendors promising 98% off that supply of hand sanitizer we’ve been putting off getting.
Pressure of the Holidays.

Emails from clients long past, lawyers we never see, all compelled to wish us a happy thanksgiving.
Ditto text messages.
“How was your Thanksgiving?
Lousy. That client we represented in 1998 for Petit Theft? He never wished us a happy holiday.
But your local counsel in Sarasota on that drugs case in 2003 did text.
True. But still…”

Almost the entire Washington Post this week has been devoted to three things: Thanksgiving recipes and how to carve the turkey, getting us in the holiday spirit…. And bombing Isis and Donald Trump. 
And that means less coverage than Trump than usual and that’s disappointing.

Starbucks closes at six.

Monday in the REGJB sucks after court being closed for two straight says.
Some judges may work until 2.

We just got an email breathlessly announcing a sale on pens. And tide detergent. But only until six. Limit two per customer.

Certain obnoxious relatives who loudly announce “Can’t we try a thanksgiving with the TV off and no football?”

Every family has one. Move to China. Or France. Or Syria. No football or TV there. Otherwise shut-up and eat your vegan turfurky and look smug. 

Pass the gristle please.

Wednesday, November 25, 2015

Thanksgiving Eve at the Gerstein Justice Building



Will be one of the following 23 attorneys who have submitted an application to the JNC for consideration to replace newly named Circuit Court Judge Charlie Johnson:

Michele A. Vargas
Elijah A. Levitt
Griska Mena Rodriguez
Karl S.H. Brown
Gordon C. Murray, Sr.
Alexander Spicola Bokor
Paul Aiello
Gina Beovides
Barbara T. Govea
Joseph J. Mansfield
Linda Luce
Ansley B. Peacock
Norman C. Powell
David Alschuler
Ramiro C. Areces
Carolyn G. Epstein
Julie H. Nelson
Peter S. Heller
Javier BaƱos Machado
Luis Perez-Medina
John W. Wylie
Jonathan Meltz
Robert A. Lesperance

The JNC can narrow the list before inviting some of the candidates for personal interviews.  They will then send between 4-6 names to Gov. Scott for his consideration.  Anyone care to weigh in on who are the favorites to wear the judicial robes?

ELECTION CENTRAL 2016 ...................

The judicial election for 2016 just got a bit more interesting.  Incumbent Judge Fred Seraphin will have opposition next year.  Attorney Milena Abreu has filed to run against Seraphin.  As of today, Judge Seraphin has not filed his papers indicating that he will run for re-election.  Assuming he does, that would create at least six contested elections, (four in Circuit Court races and two in County), for the 2016 election.

Milena Abreu has been a member of The Florida Bar for 14 years and she is currently employed at the Office of Regional Counsel.  Judge Seraphin was first appointed to the bench by Gov. Bush in 2001.  He was the first Haitian American Judge in the State of Florida.  He was an APD for ten years before becoming a Judge.  He last won election in 2010 when he ran unopposed.


UPDATED: After approximately seven hours of deliberations over the past two days, the jury returned a VERDICT of Second Degree Murder.  A PSI has been ordered and Sentencing is set for January 11th at 11:00 AM.

A long and well deserved four day weekend ahead for most in the GJB.  But jurors are still deliberating in the "Facebook" murder trial of State v. Derek Medina.  Jury deliberation began late Tuesday and continued for a couple of hours before adjourning for the evening.  Medina is charged with First Degree Murder in the shooting death of his wife, Jennifer Alonso.  The State has waived death, but 12 jurors are currently deciding on the verdict in the case.  They are also considering lessers including Second Degree Murder and Manslaughter.  During the deliberation yesterday, jurors asked to review at least two videos including a snipnet of the video of the victim and the defendant arguing near the kitchen, and the video of the interview by a detective of the ten year old daughter of Alonso.

What do our readers think the verdict will be in this case?

Happy Thanksgiving to all our loyal readers. 

CAPTAIN OUT .........

Monday, November 23, 2015


Ohh this post pains us to write. The agony, the irony of it all. But yet, we adhere to the bloggers' credo of "giving credit where credit is due...except when it relates to winning a case."

BROWARD JAIL AND ELECTRONICS -nobody (choking) does it better.
You are now permitted to bring your laptops, tablets, electronic devices into the jails without prior approval.  Over the last week I went to a few of the jails with my iPad and laptop and the staff was aware of the new policy.

Since we have started to receive discovery electronically, reviewing documents with clients in custody has been an ordeal.  Initially we needed to fax paperwork to the jail for pre-approval of bringing electronics into the jail.

BACDL, in an effort to make life easier, has worked with BSO over the last few months to formulate a new policy allowing attorneys to enter the jails, without pre-approval, with electronics to view discovery and take notes.
There are some restrictions so please read the attached new BSO policy and the acknowledgement form.  The staff at the jail will provide the form.
Some of the prohibitions are: no phones, you and/or your client cannot use skype, social media, internet or make or receive calls.


For those of you interested this is the email I received from Lieutenant Jason Eisenstein:

Mr. Mankes,
Attached is the revised interview policy and new form associated with it. The policy and form will be live beginning tomorrow morning. We have sent this out to all DOD commands for all staff to be advised of the changes in our practice of permitting the devices mentioned in the policy into interview areas. This is a substantial change in operations for our staff in dealing with electronic devices. We appreciate patience as the personnel you represent enter our facilities during the course of the next few days.
If you have any questions, please feel free to contact me.

Lieutenant Jason Eisenstein
Compliance Unit
Broward County Sheriff's Office

Rumpole notes: Miami-Dade corrections could not even agree for months and months to let attorneys see their clients. And Broward decides to let electronics in jail without moaning that it will somehow lead to tweets to ISIS to attack Hialeah, or in this case, Cooper City.

"When asked to elaborate Miami-Dade Corrections policy, a spokesman stated 'Lawyers may bring one  number 2 pencil, not too sharp, a separate hand held eraser (see memo dated 11, October, 1982 "the possession and use of additional erasers and jail policy")  and exactly four pages of 8x11 legal paper-white not yellow for obvious security reasons. Using both sides of the paper, attorneys can take the equivalent of eight pages of legal notes, which is much more than they- in our considered opinion- need.'
When asked whether Dade-County Corrections would ever allow an attorney to bring in an electronic device to discuss discovery served electronically, the spokesman collapsed in laughter, and gasped 'oh boy, that's a good one. Wait until I share that one with the guys at the 11:30 security meeting. You're too funny.' 

Update: we were contacted by a Miami-Dade corrections spokesman who stated that the jail was actively reviewing it's policy towards electronics and that, although this was off the record, we shouldn't be surprised if starting in the new year attorneys would be allowed to bring their beepers into the jail. 

Sunday, November 22, 2015


3-0 last week. Having a blistering hot season. Come make some holiday flow. 

Dolphins are a +2 home dog versus the cowpokes. Tony Romo Returns as the Jedi Knight for the Pokes, and right up until the time  Suh  knocks him in to tomorrow, Romo will be fine. Then he will regret coming back. Fins +2.

Broncos at Bears. Bruins are another home dog that is barking. Broncos have a clone at QB, and the clone wars movie was not that good anyway, so take DA BEARS at home +3.

Bengals at Cardinals. Are the wheels off the bus in Cincy? A bad week last week, and now the Cats visit the Birds as former Bungle QB Carson Palmer welcomes them to the desert of Arizona. No reason why the Bungles don't start "breaking bad" and begin  a prolonged loosing streak now. Cardinals -5 over Cincy. 

Long shots:

Packers are also in free fall, and they visit the up and coming Vikes in Minnesotta doncha know. The Vikes are a small home dog, +1, but for a few bucks we like Minny to make the Cheese Heads miserable this holiday season.

Cheaters -7 over Bills. This is not a long shot. We just hate the cheaters. But the Bills just aren't that good, and Rex is no Yoda, while Belichick is Darth Vader reincarnate. But if you need the scratch on MNF, take the evil one.

Can it be? Does Rumpole say something nice about Broward? is the world coming to an end? Check in and see.

See You in Court.

Thursday, November 19, 2015


A long time ago, in a galaxy far far away, there was a young circuit court judge who had ascended to the circuit bench by winning a run-off election against an attorney with the unfortunate (for electoral reasons) name of Fritz Mann.

A candidate with the first name of "Fritz" just didn't play well amongst  Miami's Jewish voters, so a young man named Philip S. Davis, was elected to the bench.  Davis was known around the courthouse. He handled some criminal cases. He wasn't anything special, but then again, this is a judicial election we are talking about. So Davis beat Fritz Mann.

So much for name recognition in judicial races.

This was a time before the wheel, when any judge could appoint any lawyer on any number of cases. And did.

Then a darkness descended on the REGJB.  A cabal of Judges engaged in selling their robes, and judicial appointments, for cash. A rogue lawyer named Ray Takeff became a federal informant. And in 1992- a year that will in REGJB infamy- Judges Sepe, Gelber, Davis, and Shenberg and former Judge David Goodhart were indicted in what is infamously known as "CourtBroom". Shenberg, in a sting, sold what he thought was the name of an informant that would be killed for $50,000.00. He was on video stuffing the money the FBI handed him down his pants exclaiming that it was hard to send a child to college on a judge's salary.
A slew of lawyers were also indicted.
Gelber flipped and went to prison. Shenberg was convicted and sentenced to fifteen years for conspiracy to commit murder. Sepe had some acquittals and a hung jury and eventually pled out. All the lawyers either pled or were convicted and went to prison.

But Davis was acquitted although he admitted to taking over $30,000.00 in bribes. A stirring closing argument by former federal judge (He was impeached- don't ask- this is Miami) Alcee Hastings (who is now a congressman. Don't ask. This is Miami) resulted in Davis being acquitted based on an entrapment defense. (Don't ask....)
"And David came to Bar-perazm and David smote them there; and he said: The Lord hath broken mine enemies before me."
Samuel 5:19-21.

Davis's complete acquittal was biblical in nature. He was on tape and as guilty as could be. But he had a second chance.

(Cue Darth Vader Music).

Then in 2005 Davis was arrested and charged in Miami state court with an organized scheme to defraud, and grand theft involving a charity and government funds. He went to trial in front of Judge B. Butchko (Darth Vader music) and was sentenced to a whole lot of prison time; lets just say his probation starts in 2030. The death star destroyed Alderaan. And Davis was launched. Deservedly so. He sold his robes and then stole from a charity. Enough is enough.

Until a little item crossed our path. Davis is back, with an evidentiary hearing on a rule 3.850 motion before our own Judge Milton Hirsch, who as a prominent defense attorney at the time, must have watched the proceedings- as we all did- with a sense of abject horror and fascination. There is a reset date in early December on Davis's 3.850 motion. 

Davis wrought havoc and dishonor in this courthouse and the judiciary. He was often impaired on the bench. He said and did outrageous things on the bench, and humiliated defense attorneys and prosecutors alike, subject to his warped whimsy.

This is in all likelihood it for Phil Davis. He lost at trial and appeal and now the next fifteen years of his life hang by the thinnest of threads- a 3.850 petition.

His name evokes a dark era in the REGJB; when Judges sold their robes and office, and his colleagues stuffed money down their pants not caring that an informant would be killed. His fall from grace was breathtaking in its scope. He had it all. A secure job. Respect. Dignity. And even when given a second chance, he blew it for some easy cash, a charity be dammed.

The story of Phil Davis is a modern Shakespeare tragedy, in all it's ugly, gory, glory.
"The fault, dear Brutus, lies not in our stars, but in our selves...."
Julius Caesar, Shakespeare.

See You In Court.

Tuesday, November 17, 2015


Judge Palermo has passed away. 

Both of our  Brethren South Florida Blogs covered the death of Federal Magistrate Peter Palermo at 97, but the nod goes to DOM who has the newspaper article  announcing Palermo's appointment to the newly created position as federal magistrate. Judge Palermo was one of the two first federal magistrates in the Southern District. We didn't know that.  And as both blogs point out, he was a gentleman, a wise judge, a WWII hero, and a wonderful and caring man and a pillar of our community. He was truly one of the greatest generation. 

Well, here's a big problem that we're happy the legislature is working on. 

Florida House Bill 9 will make it a 1st degree felony, punishable up to 30 years in prison and $10,000 in fines, to “knowingly be” in the state of Florida after being issued an order of deportation.  

Rumpole wonders, why just a 1st degree felony? Why not a 1st degree PBL?Or even better, a 1st PBL with a 25 year minimum mandatory. Sure, if we catch em here when they don't belong here, lets pay for their upkeep for the next half a century. That will show them. Or even better- why not a capital felony? Execute em all and let the good lord sort em out. 

This is an example of the typical election year "yokel-tough-on-crime" crap that legislators introduce to help with their re-elections or their further political careers. The problem is that some of this stuff gets enacted and the next thing you know Florida taxpayers are paying to warehouse a generation of people because Billy-Bob wanted to make the leap from State House to State Senate and campaign that he was tough on illegal immigrants. 

See You In Court. 

Monday, November 16, 2015


We went three for three yesterday in our picks. Again. (yawn). 

The FACDL is very worried about your ability to get into the courthouse. 
As the Vice President is wont to say, "this is a big F'ing deal". 
Or not. 

Good morning membership,


Beginning December 2015, the Administrative Office of the Courts (AOC) will be renewing Security By-pass Identification (ID) cards to those Criminal Defense Attorneys who currently possess a security By-pass ID for the Richard E. Gerstein Justice Building (REG) expiring December 31, 2015. (Umm... REGJB if you please.) 

This year, in order to receive the 2016 ID, attorneys will need to prepay the $10 renewal fee by check of money order payable to MIAMI-DADE COUNTY (or "Louie's garage of Hialeah and Bethesda").  The check or money order MUST be accompanied by the attached PAYMENT REMITTANCE FORM and mailed to the AOC Human Resources Division by close of business Tuesday December 1, 2015, to ensure the ID is ready for pick up at the locations outlined in the attached document. (Rumpole wonders. Back in the old days, we used to race to the one post office in Miami open to midnight to post our briefs on time. What exactly does "close of business" mean? 2pm for circuit court judges? Or if it's postmarked by 12/1 is that OK? And how about if you fedex it on 12/2 and it arrives before those letters mailed on 12/1?) 

AOC Human Resources Division
L.E.T. Courthouse Center
175 NW 1st Ave. Suite 2702
Miami, Fl 33128
Attention: Yolan Dauphin

The ID will not be available for pick up if the remittance form and check or money order is not received by Tuesday, December 1, 2015 deadline.  (Ok. Wait a sec. The above information says "postmarked by 12/1." Now this says "received by 12/1". Do we need to research the old mailbox rule? Or the Tippsy Coachman rule? How about hand delivery? This is confusing. ) 

Please note cash will not be accepted without exception. (What, you think this is Joes?)
(You may not pass GO. You May not collect $200.00. You might not even be allowed to buy a cup of coffee in the non-existent cafe, which, unless someone is playing a great joke on us, will be known as "Gordo's". We can't make this stuff up. )

Attorneys who fail to meet the December 1, 2015 deadline will need to make an appointment with the AOC Human Resources Division to collect the renewal ID. (Motto: "try getting us on the phone. Ha ha ha.) "  At this time the renewal fee will be $15.00 and appointments will not be available until after January 4, 2016.

Attached are further instructions and Important information regarding distribution schedules and locations. (see pick up schedule and Acknowledgement form attached)  (To summarize, unless you do exactly as you are told, do it when you are told, and fill out all forms in triplicate, it will be demonstrably easier to win a criminal appeal in the 11th circuit and get an apology from the government, then getting your ID pass. 

Also attached is the FACDL-Miami 2016 Membership/Renewal Form.  Annual membership runs from January 1st to December 31st in 2016.  In order to maintain uninterrupted access to our listserv, please pay your membership fees on or before January 31st, 2016. (Dues, dues dues.) 

Sunday, November 15, 2015


We're a bit pre-occupied.

Browns at Steelers. Injuries everywhere. Under 43.5.

Cheaters at Giants. Giants +7. The Jinx continues.

Panthers at Titans. Panthers -3.5, but beware the home dog.

Clinton -1885 over Sanders.
It takes 2,382 delegates to capture the Democratic nomination. Sanders, to whom we've given a few bucks because we like a cranky old radical, had a bad debate and the idea that he is weak on foreign policy is beginning to solidify in the voters of Iowa and New Hampshire. And Sanders needs to win both primaries to capture the nomination and at least New Hampshire to survive to South Carolina and Nevada. In the end Sanders could corral 500 delegates of the approximately 4,491 delegates in play.  But it takes 2,382 to win, thus we set the early line at 1885.
The money line is worse. Sanders is at least a ten to one underdog. It would take a serious bombshell- an indictment, a serious illness, or both to derail Clinton. If we were booking this, we would require people to post 1100 on Clinton to win a 100, and a Bernie bet of 100 would return 900.

Friday, November 13, 2015





Massacre at Bataclan hall, where hostages were reported. It is now confirmed over 100 dead inside. American band playing a concert is not among the dead. 

Thursday, November 12, 2015


Is the dam starting to crack?
The Kansas Supreme Court applied the reasoning in Graham and Miller to a case in which a juvenile was sentenced to a mandatory sentence of lifetime supervision. The Kansas AG is appealing. 

For us, the issue is that the Eighth Amendment reasoning of Graham and Miller (prohibiting mandatory lifetime incarceration of juveniles) may now be spreading to non-life sentences. In other words, has  the death knell for all minimum mandatory sentences been sounded?

See You In Court.

Tuesday, November 10, 2015




Will be elected one year from today.  On Tuesday, November 8, 2016, our country will hold the 58th quadrennial U.S. Presidential election.

Barring an indictment or serious health issue, Hillary Rodham Clinton, looks to become the first woman on the top half of a presidential ticket (from a major party) in the history of our country.  Many of our younger readers may not be aware of the fact that Hillary's two brothers, Hugh and Tony, both worked in South Florida for many years. 

Hugh Rodham worked for Bennett Brummer at the Miami-Dade Public Defender's Office, first as an investigator, and after he passed the bar, as an APD.  I believe that Hugh may have been one of the first APD's to be assigned to the Drug Court.  Hugh also ran for the US Senate in 1994 losing in the general election to Republican Connie Mack III.

Tony Rodham ran a process service company in South Florida for many years before he went on to marry Nicole Boxer, the daughter of California Senator Barbara Boxer. (They have since divorced).

As for the Republican nominee, that picture will still take many months to sort itself out.  Right now it is anyone's guess who will emerge as the party's nominee, but the names Trump, Carson, Rubio, Bush, and Cruz, are the most likely names to end up on the top of that ticket.  My money is on Rubio.

Who do you think will be the nominees from each party?


The Miami-Dade JNC has announced an opening on the County Court bench due to the fact that Judge Charlie Johnson was elevated recently to the Circuit Court by Governor Rick Scott.  Application are now being accepted for that open seat. The deadline for submission of your application is November 23, 2015.

Two notes about our local JNC.  First, they recently elected a new Chair.  Outgoing Chair was ASA Christine Hernandez-Baldwin.  The new Chair is

Daniel Fridman, Chair
White & Case LLP
Southeast Financial Center
200 South Biscayne Blvd. Suite 4900
Miami, FL 33131
Office: 305-995-5264

Mr. Fridman has been a member of The Florida Bar since 1999.  He is a graduate of the University of Florida and Haaarvard Law School.  After graduating law school, he clerked for US District Court Judge Alan Gold before joining the Department of Justice.  At the DOJ, he was an AUSA and then served as senior counsel to the Deputy Attorney General of the US.

And, last month, Governor Scott chose criminal defense lawyer Robert Pardo to an open seat on the JNC, (from a list of three nominees supplied to him by The Florida Bar).

If you want to get out of Committee, here is who you need to know:

Mr. Daniel W. Schwartz, Vice Chair (2016)
Ms. Melanie E. Damian (2016)
Mr. Paul Courtney Huck, Jr. (2016)
Mr. Robert H. Fernandez (2018)
Mr. Hans Ottinot Sr. (2018)
Mr. Luis E. Suarez (2018)
Ms. Christine Hernandez-Baldwin (2019)
Mr. Roberto R. Pardo (2019)


No changes in the contested Circuit and Court Court races since our last post.  There are still four contested Circuit Court races and one County Court contest.  Deadline for filing to run for Judge is May 6, 2016.



Monday, November 09, 2015


Friday was "Love Your Lawyer Day". We intentionally ignored it. 

Two (Illinois) Judges in an extramarital tryst. Yuck. 

Voire Dire continues today before Judge Colodny ("Lets go Heat") in the Facebook murder case. 

Remember that photo of an offending sign on a few courtrooms threatening to confiscate phones, and to do all sorts of horrible (not to mention illegal) things to people who dare enter a courtroom with a phone and headsets? 

Well it turns out the sign on at least one of the courtrooms was a left over from a previous judge (hint: one who has trouble writing civil motions to dismiss). 

The signs have been replaced by new, 11th Judicial Circuit approved signs that respectfully ask the public to turns their phones off, and to ask permission before taking video and pictures, which is all very proper and correct. Bravo. 

Now that's the right way to do it. 

Meanwhile, lets pretend it's a rainy day. You walk out of the REGJB after a long day of running to courts, dealing with clients and prosecutors and waiting for judges. You get outside. It's raining. Your feet hurt. You want to take a seat for a moment and rest your weary dogs. Uhho. No sitting allowed. 
It's not quite clear who posted this sign, and under what authority they believe they can prohibit an individual from sitting down for a moment. Furthermore, while loitering AND prowling is a crime in Florida, is loitering a crime? And if so, what about Judges at a free buffet? 

You can't sit on the steps, but can you sit on the railings? 

And finally, aren't lawyers solicitors? Isn't that part of our job? If we are walking out of the REGJB and see a prosecutor, are we prohibited, while on the steps from "soliciting" a better plea offer? And if we do solicit a better plea offer, who is supposed to enforce the prohibitions in this sign? 

Sign, sign, everywhere a sign
Blockin' out the scenery, breakin' my mind
Do this, don't do that, can't you read the sign?

Sunday, November 08, 2015


Please see the below post about the passing of Walter Deloatch.

There aren't a whole lot of games we like today. It's a good day to sit on the sidelines and count your winnings.

But if you must...

It's tempting to take the Panthers as a home dog +2, but this is also a bounce-back game for Green Bay, so take the over 46. WIN 

Same with Broncos at Colts. The home dog looks tempting, but take Peyton coming home, Broncos -2 over 46.

Dolphins +3 in Buffalo. If the team has turned a corner, now is the time to find out. We like the Fins coming off ten days rest. LOSS 


Thank you Rumpole

A note to let all his friends and acquaintances from the Justice Building know that Walter Deloatch passed away last Friday in North Carolina.  He had been suffering from colon cancer for the last three years but was much too young to leave us and his two daughters.  He was godfather to my daughter and never forgot her birthday or Christmas.  I shared offices with Walter for about four years and there wasn't a more down to earth, honest, and kind person in the world, even though he won a dinner from me when his Tar Heels beat my Illini in the 2005 NCAA championship game.

Clayton Kaesier

Friday, November 06, 2015


No. 3D15-1969Lower Tribunal No. 10-20591Markwood Investments Limited, et al.,Appellant,vs.Latam Investments, LLC, et al.,Appellee. 

An Appeal from the Circuit Court for Miami-Dade County, Hon. Eric William Hendon, Judge.

...The order contains an unfortunate and unnecessary element of ambiguity concerning whether it is final. First, it dismisses only the complaint (and not the case) and only “without prejudice,” two indications the order is non-final. The order then changes direction by finding that the Appellants’ claim is barred by collateral estoppel, in which case the ability to amend is futile and all judicial labor is at an end, indicating the order is final. Such ambiguous orders create problem...

Many things in law are difficult. Writing a clear and unambiguous order of dismissal is not one of them. See GMI, LLC v. Asociacion del Futbol Argentino, 40 Fla. L. Weekly D1969 (Fla. 3d DCA Aug. 26, 2015) (“An appropriate order dismissing . . . might read ‘The motion to dismiss is granted. The plaintiff [name]’s complaint and case against defendant [name] are dismissed. The court reserves jurisdiction to consider a timely motion for costs and attorney’s fees.’”)

Rumpole says, ouch!!  Appellate law is cruel. 

See You In Court. 

Thursday, November 05, 2015


Mexico's Supreme Court- the criminal section- ruled on Wednesday that Mexicans have the right to grow marijuana for personal use. It's the first step in legalizing marijuana in Mexico. 

Ohio (motto: "We all want to live in Florida") meanwhile, voted down a proposal yesterday to decriminalize marijuana. 

FACEBOOK MURDER TRIAL- The defendant accused of murdering his wife and posting it on Facebook- the trial has started. In voire dire. Openings next week. 

How in the world did we miss this? 
The Florida Supreme Court adopted amendments to the Rules Of Judicial Administration (motto: "The rules no one reads")  in which they held, ruled, wrote, said, etc.,  that Judges must now only wear black robes. "Black is black, I want my baby back..." (Los Bravos, 1957). 

Our Code of Judicial Conduct recognizes that as the “arbiter of facts and law for the resolution of disputes,” Florida’s judges are the face of the judicial branch of government. And, as such, judges must conduct themselves accordingly, both in their actions and their appearance. .. When a litigant appears in court, it is the presiding judge who sets the tone of the proceedings, puts those in attendance at ease, and maintains order and decorum throughout the proceedings, all of which establishes confidence in the legal process...
Presiding judges wearing different colored robes or robes with varying embellishments could result in uncertainty for those coming before our courts and serve to counter the efforts the branch has employed to gain the public’s trust. For example, one could question whether there is a “status” attributed to the varying colors or embellishments worn by different judges, e.g., whether the color or embellishment denotes a rank of judge based on tenure, ability, or some other factor—is this judge more or less qualified or maybe the chief judge? Depending on the color or pattern of the robe or the type of embellishment worn, some may wonder whether the presiding judge is a “real judge” or whether the judge will take the proceedings seriously. Robe color also could be seen as a reflection of a judge’s mood or attitude that day. (Rumpole says- how 1970's of them. They remember mood rings!!) 
Should a defendant facing the death penalty feel trepidation when the presiding judge appears in a red robe or feel more at ease when the robe is green? (Rumpole says, no, the defendant should feel trepidation if s/he's being prosecuted in Broward) 
The possibility that the unique attire of the judge assigned to one’s case could raise these concerns and thereby diminish public trust and confidence in the proceedings is not acceptable. The public should not have to guess as to the meaning of different colored, patterned, or embellished robes. Promoting uniformity in judicial attire, by requiring all judges to wear unembellished, solid black robes, will no doubt avoid these concerns and promote public trust and confidence. The people of Florida have a right to expect equal justice every day, in every court in this state, and should not have to question whether equal justice is being dispensed based on the color of a judge’s robe

(this is the part we like)

It is also reasonable for the people of Florida to expect the members of their judiciary to conduct themselves as professionals consistent with the rules and guidelines adopted by this Court. We have no doubt that the clear majority of judges conduct themselves in the most exemplary manner and hold themselves to the highest of standards, and would do so without any rules governing their conduct or attire. Unfortunately, that is not the case with all judges. One need only read the myriad opinions from this Court disciplining judges after a finding of misconduct by the Judicial Qualifications Commission to agree that this Court must provide guidance when it identifies an area of potential concern. Adopting new rule 2.340 is but another step this Court takes in furtherance of its oversight and leadership role in identifying and implementing strategies to enhance the public trust and confidence in the third branch of government. 

Where have you gone Judge Alfred Nesbitt? Our courthouse turns its lonely heads to your blue robes. 

See you in court. 

Tuesday, November 03, 2015


It's that time of year again, when Judges and Lawyers get together and drink and chat and speak ill of those not attending.

Pick the fake conversation snippet we have had with a judge at one of these shindigs over the years:

1) "...and the governor called and said if I put my name in he would chose me for the Third DCA, but I really like trying cases..."

2) "...and it's a lot of money and I can write my own ticket at Greenberg but the kids are out of college and I'd prefer to not take on a full case load and all the stress of private practice..."

3) "...and I told the prosecutor to call Kathy Rundle and have her report to my court immediately but instead they nolle prossed the case..."

4) "... and not only did the jury find my client not guilty, but they wrote a note to the judge that I was the best lawyer they had ever seen.  And that was only in my second year of practice. Then when I tried my first federal case..."

5) "...and I tried thirty cases in my first two years at the SAO, and won twenty-nine of them, and then tried another forty in the next three years and won them all..."

6) "...so then after issuing the order I got a very nice handwritten note from a justice on the Florida Supreme Court saying it was the best order he had ever seen and that I should definitely put my name in to be an appellate judge..."

7) "...but I wouldn't hear of it, so I paid for dinner..."

See you in court, but not at Lolita whatever, because we really don't associate with hoi-polloi if we can help it. 

#7 is the fake one. 

Monday, November 02, 2015


It must be something in the water. It's not just Judges in Broweird who act weird. 

Here is a tale of woe, press releases, internet trolls, threats, blogs, more threats, voicemail threats, and it all means mostly nothing. 

Interested? Take a drink, sit back, and relax. 

DRAMATIS PERSONAE: (In no particular order of appearance or importance)

Broward Lawyer Gary Ostrow; Lawyer/Blogger Scott Greenfield; Lawyer/Blogger Mark Bennett; Miami Lawyer, Blogger, raconteur, and blog favorite Brian Tannebaum; and some character named Patrick Zarrelli, pictured below:

What, Me worry?

 Ok. Sit tight and buckle up. Here we go

Osrtrow put out this ill-advised press release announcing his intention to represent any and all celebrities arrested in Florida. Press Release here.   It got the predictable response on the web. Ridicule. As if all criminal defense attorneys were previously saying "I want nothing to do with those ridiculous celebrity arrest cases, with their large fees and corresponding publicity." 

Scott Greenfield, the aforementioned blogger did a few posts on it, here and here.   Mark Bennett did a post on his blog as well, here.  The posts were predictably negative in their view of the press release. As we often write in our appellate briefs: "DUH".

Enter Patrick Zarelli, self described "internet reputation..."something or other. Zarelli was hired by Ostrow to get the offending posts removed. Zarelli contacted Bennett who posted the encounter here. 
And then Zarelli contacted Greenfield, who posted the encounter and phone call here.   

A legal blogger from NYC got into the act ridiculing team Ostrow, because it was just too much fun to sit on the sidelines. His blog post is here.

TechDirt got into the fun piling on  here.

And somehow our own Brian T got into the fray (probably on twitter), so Zarelli called him and left a message, and Brian posted the phone call here.   
This the transcript. 

So here's how it all plays out.
First- don't post ridiculous press releases unless you want to suffer the wrath of the web. 
Second- don't hire wannabe lawyers who threaten real lawyers with legal action unless you want to see your wannabe lawyer  squashed like a bug on a windshield. 

Our prediction: We will be contacted. We will be threatened with legal action. We will yawn and go about our day. 


See You In Court.

Sunday, November 01, 2015

NFL 2015 WEEK 8

Sorry readers, but a difficult travel and trial schedule has left us behind a bit and Sundays is a travel day so we don't have a lot of time for our traditional Sunday football posts.

Chargers at Ravens. This is a bounce back game. Take the Ravens -3.5 at home because the Ravens aren't as bad as their record, and the Chargers stink.

Packers at Broncos, one of the two games of the day. The Broncos are home dogs, +3. Peyton Manning can't throw the ball farther than the length of a courtroom, and the Broncos defense will only carry them so far, but not past the Pack. Take the Pack +3.

Jets at Raiders. This is a home dog we like. Take the Raiders at home getting three.

And if any of these don't work out and you need a get even game, the over 46 on the Monday night Colts at Panthers looks enticing.

The Great Al Molinaro has passed away. We will always remember him as Murray the Cop in The greatest sit-com of all time: The Odd Couple. 

See you in court. We hope.