Friday, April 29, 2016
JUDGE SAYFIE HAS AN OPPONENT
THE CAPTAIN REPORTS:
BREAKING NEWS ..... JUDGE NUSHIN SAYFIE HAS DRAWN OPPOSITION .....
UPDATED BELOW
In a stunning move, Judge Nushin Sayfie, Chief Administrative Judge of the Criminal Division, has drawn an opponent. Judge Sayfie is running for reelection in Group 59 of the Circuit Court.
Her opponent is attorney ROSY APONTE, who has been a member of The Florida Bar for, hold your breath, a whopping seven years. Ms. Aponte maintains a law office in the City of Doral. Ms. Aponte filed to run against Judge Sayfie earlier today.
Judge Sayfie began her career with the Public Defender's Office and worked for the Eleventh Judicial Circuit PD from 1994-1999 and from 2001-2007. She also spent two years with the PD in the Second Circuit from 1999-2001. Judge Sayfie became a Circuit Court Judge in 2007. She was appointed by Governor Charlie Crist in 2007 and ran unopposed in 2010.
Judge Sayfie has currently raised $54,000 and loaned her campaign a total of $5,000.
We know nothing about her opponent.
UPDATE:
If Aponte decides to leave Group 59 and jump into another race, here are the Incumbents currently running unopposed. One of them may end up having a long, hot summer filled with shaking lots of hands:
John Schlesinger - $61,000**; $100,000***
Rudy Ruiz - $118,000; $3,500
Scott Bernstein - $76,000; $50,000
Bertila Soto - $108,000; $2,000
John Thornton - $189,000; $100,000
Jennifer Bailey - $156,000; $5,000
Rosa Rodriguez - $89,000; $0.00
Barbara Areces - $64,000; $10,000
David Young * - $222,000; $250
William Thomas - $188,000; $500
Milton Hirsch - $174,000; $100,000
Samantha Ruiz Cohen - $111,000; $25,000
Monica Gordo - $144,000; $0.00
Jorge Sarduy - $105,000; $500
*former judge with no current opposition
**the first number represents the amount raised
***the second number represents the amount the candidate loaned to their campaign
If Judge Sayfie is lucky enough to have Ms. Aponte move to another Group, I'm thinking that Scott Bernstein is shaking in his boots right about now.
COUNTY COURT .... GROUPS 15 & 35
The latest on Group 35 is that Judge Wendell Graham is down to one opponent; Antonio "Tony" Jimenez. That's because his other opponent, patent attorney Ruben Alcoba, has jumped into the Group 15 race against Linda Luce and Eleane Sosa-Bruzon.
CAPTAIN OUT .....
Captain4Justice@gmail.com
Wednesday, April 27, 2016
20 QUESTIONS
UPDATED
Why....
Why does life and practice of law in the REGJB need to be so difficult?
Twenty questions:
1) Why aren't court documents scanned so they can be accessed electronically?
Let's break this down in to two subsets. First, the Feds have a great system. You electronically file something and it is available for downloading from then on. This system was fully functional before the state instituted our filing system which does not make filed documents accessible.
Second, what's the document attorneys wait in line at the clerk's office (now down to one clerk and counting) to copy? An A-Form on a new case. Why aren't those scanned so we can get them?
We can order a four course meal from a French restaurant on our phone and pay for it and have it delivered to the courthouse within an hour, but we can't get a copy of an a-form without waiting in a line for the same hour.
You can apply for a freaking mortgage on your phone. But we can't an electronic copy of one damn pink piece of paper ("the defendant fraudulently applied for over 200 mortgages from his phone and was arrested after an investigation.")
2) Why aren't informations provided to the defense? It's only the charging document. The prosecution doesn't give you one when they file charges and all the in court clerk will do is give you some vague promise about mailing it to you sometime before 2027. But why incur the mailing cost? Why not have a copy available? Or scanned and emailed? We realize we're being picky here. It's only the charging document. The piece of paper that is bringing your client to court and may send her to prison for life. Other than that, it's not that important.
3) Why can't clerks in court certify a copy? Why do we have to get a copy of an order in court and then have to trek up to nine and wait in line for the clerk (down to one every other day and counting) to get it certified?
4) And if the in court clerk could certify a document, then a motion to transport a defendant could be certified in court and handed to a corrections officer. Instead, here is the procedure (edited for brevity) : i) Go to court; It's not on calendar. leave; ii) Re-set the motion; iii) Go back to court; iv) Get the order signed; v) Walk or ride the elevator up to nine; Go see the clerk (down to working twice a week and counting); vi) Get six certified copies; vii) Walk down to six. Go to corrections. Give them six certified copies. They want seven. vii) Go back to court. Court is finished for the day; viii) Call the JA and ask the case to be put back on calendar. JA asks for a written motion first. Email the motion. JA sets it on calendar in six weeks; ix) Go to court. Get motion signed. Judge comments she already signed this. "It's too long to explain judge. Just sign it again." x) Get order. Take elevator up to nine; xi) Wait in line for clerk. xii) Get sixteen certified copies; xiii) Take certified copies to corrections. "Why do you have sixteen certified copies? We only need three." ; xiv) Look for window to jump out of.
Rinse. repeat.
5) Why do we have to call over-worked JAs to calendar a case? We can schedule an appointment with a heart surgeon over an app on our phone. We can buy a car on-line, book a trip to Bali, make reservations at Per Se on our phone. We can short Apple and go long on Bank of America with three clicks on our phone. But we have to call a JA to schedule a two minute motion.
Why does the practice of law in the REGJB have to be this difficult?
There are Apps for everything these days. Uber is changing the world. In San Francisco most of the parking spaces downtown are being electronically monitored so an App can find a parking space for you. But in the REGJB if you want almost anything, you need to wait on line and ask for a paper file which the odds are 50-50 cannot be found, and then copy the item in the file. It boggles the mind how far behind the times we are.
Five questions about five simple issues for which the technology exists to do it better, cheaper, and easier.
15 questions left. Post yours in the comments and we will consider using them.
See you in court, where you must turn your beeper off before entering a courtroom.
UPDATE: Question # 6
6) WHY CAN'T WE GET DECENT WI-FI in the courthouse?
Why....
Why does life and practice of law in the REGJB need to be so difficult?
Twenty questions:
1) Why aren't court documents scanned so they can be accessed electronically?
Let's break this down in to two subsets. First, the Feds have a great system. You electronically file something and it is available for downloading from then on. This system was fully functional before the state instituted our filing system which does not make filed documents accessible.
Second, what's the document attorneys wait in line at the clerk's office (now down to one clerk and counting) to copy? An A-Form on a new case. Why aren't those scanned so we can get them?
We can order a four course meal from a French restaurant on our phone and pay for it and have it delivered to the courthouse within an hour, but we can't get a copy of an a-form without waiting in a line for the same hour.
You can apply for a freaking mortgage on your phone. But we can't an electronic copy of one damn pink piece of paper ("the defendant fraudulently applied for over 200 mortgages from his phone and was arrested after an investigation.")
2) Why aren't informations provided to the defense? It's only the charging document. The prosecution doesn't give you one when they file charges and all the in court clerk will do is give you some vague promise about mailing it to you sometime before 2027. But why incur the mailing cost? Why not have a copy available? Or scanned and emailed? We realize we're being picky here. It's only the charging document. The piece of paper that is bringing your client to court and may send her to prison for life. Other than that, it's not that important.
3) Why can't clerks in court certify a copy? Why do we have to get a copy of an order in court and then have to trek up to nine and wait in line for the clerk (down to one every other day and counting) to get it certified?
4) And if the in court clerk could certify a document, then a motion to transport a defendant could be certified in court and handed to a corrections officer. Instead, here is the procedure (edited for brevity) : i) Go to court; It's not on calendar. leave; ii) Re-set the motion; iii) Go back to court; iv) Get the order signed; v) Walk or ride the elevator up to nine; Go see the clerk (down to working twice a week and counting); vi) Get six certified copies; vii) Walk down to six. Go to corrections. Give them six certified copies. They want seven. vii) Go back to court. Court is finished for the day; viii) Call the JA and ask the case to be put back on calendar. JA asks for a written motion first. Email the motion. JA sets it on calendar in six weeks; ix) Go to court. Get motion signed. Judge comments she already signed this. "It's too long to explain judge. Just sign it again." x) Get order. Take elevator up to nine; xi) Wait in line for clerk. xii) Get sixteen certified copies; xiii) Take certified copies to corrections. "Why do you have sixteen certified copies? We only need three." ; xiv) Look for window to jump out of.
Rinse. repeat.
5) Why do we have to call over-worked JAs to calendar a case? We can schedule an appointment with a heart surgeon over an app on our phone. We can buy a car on-line, book a trip to Bali, make reservations at Per Se on our phone. We can short Apple and go long on Bank of America with three clicks on our phone. But we have to call a JA to schedule a two minute motion.
Why does the practice of law in the REGJB have to be this difficult?
There are Apps for everything these days. Uber is changing the world. In San Francisco most of the parking spaces downtown are being electronically monitored so an App can find a parking space for you. But in the REGJB if you want almost anything, you need to wait on line and ask for a paper file which the odds are 50-50 cannot be found, and then copy the item in the file. It boggles the mind how far behind the times we are.
Five questions about five simple issues for which the technology exists to do it better, cheaper, and easier.
15 questions left. Post yours in the comments and we will consider using them.
See you in court, where you must turn your beeper off before entering a courtroom.
UPDATE: Question # 6
6) WHY CAN'T WE GET DECENT WI-FI in the courthouse?
Tuesday, April 26, 2016
Lot 26 Woes
"Ebony and Ivory live together in perfect harmony."
So goes the song.
Not so much for criminal defense attorneys and law enforcement officers.
Lot 26, the parking lot adjacent ("next to" for our robed readers) to the REGJB, has become a flash point of sorts once again. This is the parking lot young ASAs tramp through every day, lugging carts teeming with disorderly conduct and DWLS cases while sipping Starbucks and snapchatting and walking right down the middle of the lot oblivious to the line of cars creeping behind them looking for a parking space.
But more of the issue is police officers who are not good neighbors, parking lot wise. Which reminds us, as Donald Trump is wont to say, tall fences make good neighbors.
However, the problem with sharing (a skill covered in kindergarten) is percolating just beneath the surface:
Evidence this rant, which went the FACDL listserv equivalent of viral:
So goes the song.
Not so much for criminal defense attorneys and law enforcement officers.
Lot 26, the parking lot adjacent ("next to" for our robed readers) to the REGJB, has become a flash point of sorts once again. This is the parking lot young ASAs tramp through every day, lugging carts teeming with disorderly conduct and DWLS cases while sipping Starbucks and snapchatting and walking right down the middle of the lot oblivious to the line of cars creeping behind them looking for a parking space.
But more of the issue is police officers who are not good neighbors, parking lot wise. Which reminds us, as Donald Trump is wont to say, tall fences make good neighbors.
However, the problem with sharing (a skill covered in kindergarten) is percolating just beneath the surface:
Evidence this rant, which went the FACDL listserv equivalent of viral:
Good morning,
Several years ago those of us who pay upwards of $100 a month to park in lot 26 were asked to share the parking lot with law enforcement officers who get to park there for free.
Throughout the years there's been conflict especially on Monday mornings when the parking lot tends to be over full.
Below please find photographs of a particular law enforcement officer who chose to park in a manner taking up two parking spaces on a Monday morning.
If we are all required to share we should all be courteous to those around us, especially if you were invited to park in our lot for free.
If someone knows who this officer is please advise he or she that they would benefit from retaking the parking class at the police academy. Thank you
Here is defense exhibit one, which to be honest with you, is more like the work of a City of Miami Crime Scene tech, then a good and clear picture of the problem.
Monday, April 25, 2016
ELECTION CENTRAL UPDATE .... WENDELL GRAHAM UPDATE .....
THE CAPTAIN REPORTS:
ELECTION CENTRAL 2016 ...................
COUNTY AND CIRCUIT COURT RACES
A whole lot of changes in the landscape of judicial races has taken place in the past week in both the County Court and Circuit Court.
COUNTY COURT
GROUP 15
We were the first to report (on March 8th) that Judge Judith "Judy" Rubinstein had decided to hang up her robe after 16 years on the bench.
As soon as Judge Rubinstein announced her intention to retire, two attorneys who had filed to run in Circuit Court jumped at the opportunity for a less crowded field and filed in her County Court Group. The first attorney, Antonio G. Jimenez, who had previously filed to run in Circuit Group 34, is still now running for County Court. But, the second lawyer, Raul Perez-Ceballos, who previously filed to run in Circuit Group 52, then filed to run in County Court Group 15, has now firmly chosen to return to the Circuit Court race in Group 52 against Jodie Breece, Elena Ortega-Tauler, and Oscar Rodriguez-Fonts. Perez-Ceballos plucked down his check in the amount of $5,843.20 last week representing the filing fee to run for Circuit Court Judge.
GROUP 35
We previously reported to you that only one incumbent, Judge Wendell Graham, had yet for file to run for reelection in his Group 35 of the County Court. When we spoke with Judge Graham this past October, he indicated to us that he intended to run again. Judge Graham has been on the bench since 1994. With two weeks left in the filing period Graham has still not filed to retain his seat. When we recently spoke with him again, he reiterated his intention to file. The problem is, because he waited as long as he did, when he does file, he will now have to face two challengers who are attempting to take his seat away from him.
Filing to run in Group 35:
Antonio G. Jimenez. Yes, the same Jimenez that had first filed in Circuit Group 34; then moved to County Group 15, has now settled into running for the open seat in County Group 35.
Ruben Y. Alcoba. He joined the race this past Friday. Mr. Alcoba has been a member of The Florida Bar for the past 17 years. He is a patent attorney having handled over 500 patent and trademark legal matters.
GROUP 15
Wait, so if incumbent Judith Rubenstein first filed, then dropped out of County Group 15; and if challenger Antonio Jimenez first filed in this Group and then switched to County Group 35; and if challenger Raul Perez-Ceballos first filed in Circuit Group 34, then switched to County Group 15, only to switch back to Circuit Group 34,
Who, you ask, is left to run in County Group 15. Well, until a few days ago - nobody. Enter:
Linda Luce. She has been a member of The Florida Bar since 1995. We believe Ms. Luce handles primarily family law matters with an office in Coral Gables.
Eleane Sosa-Bruzin. She has been a member of The Florida Bar since 2005. Ms. Sosa-Bruzin is currently employed with Landau & Assoc., a large firm based in Hollywood. She began her career at the Broward PD’s office. She now handles PIP suits.
No doubt there will be a lot more hopping around between Groups and a few last minute surprise candidates as we draw closer to the filing deadline of Friday, May 6, 2016.
CAPTAIN OUT .....
Captain4Justice@gmail.com
Friday, April 22, 2016
HAPPY BIRTHDAY
She's 90
And he died 400 years ago.
It's better to be in England, now that spring is here.
Events at Stratford-upon-Avon this weekend.
WHEN OA AT THE SUPREME COURT GOES BAD
Slate has the uncomfortable details here (h/t Mr. Markus).
Our read: The Supreme Court wants to require warrants in DUI blood tests for certain, and maybe even breath tests, but no competent lawyer can give them the facts they need.
Interesting side note: the court talks a lot about "insta-warrants"- warrants obtained electronically in minutes, and we're just wondering- original intent and original text wise- in which federalist paper that was discussed?
EXCLUSIVE FIRST LOOK
EL CHAPO CAFE
Photo reprinted without the permission of El Chapo Cafe, but sent in by alert reader Kenneth Weisman, at great personal expense.
And he died 400 years ago.
It's better to be in England, now that spring is here.
Events at Stratford-upon-Avon this weekend.
WHEN OA AT THE SUPREME COURT GOES BAD
Slate has the uncomfortable details here (h/t Mr. Markus).
Our read: The Supreme Court wants to require warrants in DUI blood tests for certain, and maybe even breath tests, but no competent lawyer can give them the facts they need.
Interesting side note: the court talks a lot about "insta-warrants"- warrants obtained electronically in minutes, and we're just wondering- original intent and original text wise- in which federalist paper that was discussed?
EXCLUSIVE FIRST LOOK
EL CHAPO CAFE
Photo reprinted without the permission of El Chapo Cafe, but sent in by alert reader Kenneth Weisman, at great personal expense.
Thursday, April 21, 2016
DOCTOR (?????) STANFORD BLAKE .....
THE CAPTAIN REPORTS:
"DOCTOR" STANFORD BLAKE .....
"I thought I was going to be a dentist.
I don't know why. After three chemistry
courses I said, 'This is not going to work.' "
The year was 1966. It was a fun time to be on campus at the University of Florida. But for freshman student Stanford Blake, it was all business. That was until he barely survived his first year of science classes. Then he switched to majoring in Advertising, even winning a national competition and earning job offers from NY ad agencies.
Fortunately for us, Stan didn’t want to live in cold weather NYC and really didn't see his future in advertising. NY’s loss - our gain. He went to the UM law school, and in his final year there, he interned at the Miami PD’s office. "He loved it "from the first day I went to court," Blake said.
"Your deodorant was failing you in 10 minutes,
but afterward you would say, 'What a rush!'"
He was hired by the PD’s office and spent five years there. Then 16 more in private practice as a criminal defense attorney. While he always thought that he might run for Judge one day, it wasn’t until Operation Court Broom that Stan thought seriously about it. He said:
"My disillusion with everything really made me move it up," .
"I was so upset that judges were on the take, and I said,
'Sometimes, if you're not part of the solution, you're part of the problem.' "
Elected in 1994, he took the bench the following January. Now, 21 years later, he reflected on his career in a story this past weekend in the DBR that can be found here.
In 1996, he took a brief leave from the bench to donate a kidney to his brother. He took another medical leave last year after doctors diagnosed him with cancer of the tonsils; which is related to the HPV virus and in men is often contracted through oral sex. He likes to joke about that scare:
"Lisa (his girlfriend) said I'm the only guy
who can brag about how he got cancer," Blake said.
It won’t be long before Judge Blake retires from the bench and goes the mediation route. While he is still on the bench, all of us in the criminal justice community want to say while we can: "Thanks for all the great memories" and all of your great years of service on the bench working for the citizens of our community. Well done my friend, well done.
CAPTAIN OUT .....
Captain4Justice@gmail.com
Monday, April 18, 2016
JUDGE JACQUELINE SCHWARTZ IN TROUBLE AGAIN
We interrupt our Donald Trump like coverage of the suspension of Judge Schwartz to remind the denizens of the REGJB that there is a lunch and learn Wednesday.
The topic, and we couldn't make this up if we tried, is...
"Defending clients with professional licenses."
Hmm.. truth is stranger than fiction.
Sometimes the blog spirits shine on us.
Go eat and learn.
UPDATE: Judge Schwartz has been suspended. Initially the suspension is with pay. In other words, unlike the rest of the real world, she doesn't have to work for her paycheck. But we understand, she is a constitutional officer (as difficult as that may be to choke down) and there has to be a procedure in place for the Supreme Court to suspend her without pay. The below order requires the parties to brief that issue.
THE DBR REPORTS:
The topic, and we couldn't make this up if we tried, is...
"Defending clients with professional licenses."
Hmm.. truth is stranger than fiction.
Sometimes the blog spirits shine on us.
Go eat and learn.
UPDATE: Judge Schwartz has been suspended. Initially the suspension is with pay. In other words, unlike the rest of the real world, she doesn't have to work for her paycheck. But we understand, she is a constitutional officer (as difficult as that may be to choke down) and there has to be a procedure in place for the Supreme Court to suspend her without pay. The below order requires the parties to brief that issue.
THE DBR REPORTS:
Disciplinary troubles mounted Monday for Miami-Dade County Court Judge Jacqueline Schwartz, who was accused of being intoxicated in court and starting a drunken confrontation with staff and police at a Miami restaurant...
Thee latest incident, according to the state Judicial Qualifications Commission.
Witnesses said the judge "took the bench and presided over a criminal traffic docket while impaired" March 28, the commission charges said.
"After approximately 90 minutes, Judge Schwartz was removed from the bench by the chief judge and sent home. At first, Judge Schwartz stated that she was OK to drive herself home," the complaint said. Her bailiff drove her home in her car, but the judge couldn't remember her address or give directions and didn't recognize her bailiff or realize she was in her own car.
There was also an incident on March 18 at the Ergon Greek restaurant where the police had to be called and the judge was removed and appeared to be intoxicated, cursed at the police officers, threatened them, told them she was a judge, and threatened to have a waiter who would not serve her alcohol fired.
Most disturbing of all is that Judge Schwartz "self reported" the incident to the JQC in which she totally and completely denied anything unusual occurring. This despite the fact that patrons of the restaurant individually called 911.
Most disturbing of all is that Judge Schwartz "self reported" the incident to the JQC in which she totally and completely denied anything unusual occurring. This despite the fact that patrons of the restaurant individually called 911.
Probable cause has been found. Things look dim.
There are times we are hard on people and there are times we are not. In the pages of this blog recently we have refused to publicize the name of a prosecutor arrested. We said it was personal incident and we didn't want to pile on. We distinguished the arrest from an incident that would occur during the time someone was at work.
Judge Schwartz was impaired on the bench. (Allegedly). She was removed from the bench by our chief judge while trying to preside over a trial. There was a rumor she locked herself in her chambers. Most disturbingly, Judge Schwartz apparently attempted to drive home but was stopped by police at the courthouse.
We are by no means DUI experts, but isn't there case law that allows for the arrest of an individual who is impaired and has car keys and is going to their car under the theory they are in actual or constructive possession of their vehicle?
Was Judge Schwartz granted a courtesy that normal clients, defendants, lawyers, have not been granted?
Enough is enough. Whether she has an alcohol problem or not, this is a judge who is consistently rude to people, who flouts her position as a judge outside of court and during the time she has nasty interactions with the public, and has firmly demonstrated in our mind that she does not have the ability, temperament and judgement to be a judge. She should do us all a favor and resign. If she doesn't resign, she should be removed.
And the Miami Herald should cringe that they endorsed her in the last election and they should issue a retraction and admit they got it 100% wrong.
Judge Schwartz's behavior is an embarrassment and brings discredit to the legal profession and the judiciary.
There are times we are hard on people and there are times we are not. In the pages of this blog recently we have refused to publicize the name of a prosecutor arrested. We said it was personal incident and we didn't want to pile on. We distinguished the arrest from an incident that would occur during the time someone was at work.
Judge Schwartz was impaired on the bench. (Allegedly). She was removed from the bench by our chief judge while trying to preside over a trial. There was a rumor she locked herself in her chambers. Most disturbingly, Judge Schwartz apparently attempted to drive home but was stopped by police at the courthouse.
We are by no means DUI experts, but isn't there case law that allows for the arrest of an individual who is impaired and has car keys and is going to their car under the theory they are in actual or constructive possession of their vehicle?
Was Judge Schwartz granted a courtesy that normal clients, defendants, lawyers, have not been granted?
Enough is enough. Whether she has an alcohol problem or not, this is a judge who is consistently rude to people, who flouts her position as a judge outside of court and during the time she has nasty interactions with the public, and has firmly demonstrated in our mind that she does not have the ability, temperament and judgement to be a judge. She should do us all a favor and resign. If she doesn't resign, she should be removed.
And the Miami Herald should cringe that they endorsed her in the last election and they should issue a retraction and admit they got it 100% wrong.
Judge Schwartz's behavior is an embarrassment and brings discredit to the legal profession and the judiciary.
Here is the complaint.
Jeff Feiler, Esq., for the defense.
Jeff Feiler, Esq., for the defense.
Dr. Bruce Hyma Dade ME has Passed Away
David Ovalle and the Miami Herald have the sad news here, that Dr. Hyma, known to a generation of prosecutors, defense attorneys, judges, and more importantly-the next of kin of the deceased- as a kind, honest, decent and superb medical examiner has passed away.
As the article points out, Dr. Hyma joined the Medical Examiner's office when it was led by the legendary ME Joe Davis and Dr Hyma became the chief ME where he left his mark on the office, the court system, and the bereaved.
As the article points out, Dr. Hyma joined the Medical Examiner's office when it was led by the legendary ME Joe Davis and Dr Hyma became the chief ME where he left his mark on the office, the court system, and the bereaved.
IT'S BAIL BEFORE JAIL
There's a phenomenon occurring in our criminal courts- the use of rap lyrics by prosecutors against defendants.
Here is an interview with Dr. Erik Nielson who has a masters in Shakespeare and a doctorate in English Literature.
The article is here, and the highlights with the yellow below are original (sorry, they're annoying)
Here is an interview with Dr. Erik Nielson who has a masters in Shakespeare and a doctorate in English Literature.
The article is here, and the highlights with the yellow below are original (sorry, they're annoying)
Rap lyrics are being used in three main ways: 1) They’re treated as confessions if they’re written after the crime. 2) They’re treated as proof of intent if they're written before the crime. 3) They’re classified as "threats"—the lyrics are the crime themselves.
Rap is the only fictional genre that’s being used in court like this. And its use is undoubtedly racially motivated since only one or two cases involved white defendants.
The one case Nielson cannot let go of involves No Limit’s Mac, who is currently serving a 30-year sentence for shooting a man at a concert. Not only were Mac's lyrics used in court, the prosecution spliced lyrics together from two different songs to change the meaning of what he rapped.
Judges aren’t supposed to allow “evidence if it’s prejudicial,” but they’re misled by police and prosecutors. Maybe it’s because they’re older, or maybe it’s because they’re just as prejudiced as juries.
Thursday, April 14, 2016
FAILURE
The most important lesson of life is failure.
The measure of a person is not how many times they are knocked down, but how many times they get back up.
It's important that the best among us fail. It gives them perspective on the rest of us. When the best fail, they judge those who come before them in the light of their life's experiences. We're not just talking about judges here. Parents who see their children repeating the mistakes they made thirty years ago; the politician who knows failure and humiliation and even personal indiscretion, who is given a second chance. And yes, the prosecutor who fails and commits a crime.
We live in a time of instant information, where failures are recorded on the internet for time immemorial and where the politics of absolutism demand that leaders, officials, candidates, presidents, judges, et.al, all tow the religious, moral and philosophical line of their constituents without error or deviation.
General Petraeus was forced out of the CIA because of an affair he had in Iraq during his leadership of the surge that finally ended the fighting.
Dwight Eisenhower, a lowly Lieutenant General from Kansas was plucked from obscurity by George Marshall to become the Supreme Allied Commander of the Armed Forces in Europe for World War II. It was upon Eisenhower's shoulders, and his alone, that he made perhaps the momentous decision of the 20th century, when on June 2, 1944, he postponed the invasion of Europe from June 5 to June 6. On June 5, he gave the final go-ahead, sending 4,000 warships and 160,000 men into battle. On May 30, 1944 the British Commander of the entire Airborne Operation asked Ike to cancel the paratrooper drop of 18,000 men, arguing that he would lose 90% of them. Eisenhower needed the airborne to control the bridges and access to the beaches and keep the German army from throwing the invasion back into the sea. Eisenhower called the decision to go with the airborne assault the toughest decision of his life.
Eisenhower had a mistress throughout most of WWII. And yet he performed his duties superbly, and became president of the United States.
Would Eisenhower be court-marshaled today?
Several Presidents had mistresses before and during their time in office.
Lincoln, surely our greatest president who suffered the most in office and made the most difficult and loneliest decisions of any president, was most certainly manic-depressive. And yet Lincoln saved the Union. The greatest figure of the 20th century- Winston Churchill also suffered from depression. Would we be better off today if Lincoln and Churchill were disqualified from service?
Franklin Roosevelt served almost sixteen years as President, taking the country from the depression to the edge of victory in WWII. Roosevelt had a mistress. His affair was discovered by his wife well before he became president.
None of these great men would have withstood the intense scrutiny today.
Our scrutiny of leaders, achievers, and those who dare, weeds out the best, and leaves us with the most mediocre. Perhaps they've never had an affair or a bout of depression, but they are deemed "morally pure"- the only crucible that now seems to matters.
Given the choice, the last person we would ever want to sentence us would be a judge who has never failed or erred in their personal choices. It's their life experience and not their pretense at perfection that gives them the perspective to do their job.
How many Supreme Court nominees in the late 1980's and 1990's were disqualified because they may have smoked marijuana?
Would a brilliant female jurist who had an abortion be disqualified from service today?
"Let he who has not sinned cast the first stone."
Wise words from a failed carpenter. The son of a single woman. A man who consorted with a prostitute.
See you in court.
The measure of a person is not how many times they are knocked down, but how many times they get back up.
It's important that the best among us fail. It gives them perspective on the rest of us. When the best fail, they judge those who come before them in the light of their life's experiences. We're not just talking about judges here. Parents who see their children repeating the mistakes they made thirty years ago; the politician who knows failure and humiliation and even personal indiscretion, who is given a second chance. And yes, the prosecutor who fails and commits a crime.
We live in a time of instant information, where failures are recorded on the internet for time immemorial and where the politics of absolutism demand that leaders, officials, candidates, presidents, judges, et.al, all tow the religious, moral and philosophical line of their constituents without error or deviation.
General Petraeus was forced out of the CIA because of an affair he had in Iraq during his leadership of the surge that finally ended the fighting.
Dwight Eisenhower, a lowly Lieutenant General from Kansas was plucked from obscurity by George Marshall to become the Supreme Allied Commander of the Armed Forces in Europe for World War II. It was upon Eisenhower's shoulders, and his alone, that he made perhaps the momentous decision of the 20th century, when on June 2, 1944, he postponed the invasion of Europe from June 5 to June 6. On June 5, he gave the final go-ahead, sending 4,000 warships and 160,000 men into battle. On May 30, 1944 the British Commander of the entire Airborne Operation asked Ike to cancel the paratrooper drop of 18,000 men, arguing that he would lose 90% of them. Eisenhower needed the airborne to control the bridges and access to the beaches and keep the German army from throwing the invasion back into the sea. Eisenhower called the decision to go with the airborne assault the toughest decision of his life.
Eisenhower had a mistress throughout most of WWII. And yet he performed his duties superbly, and became president of the United States.
Would Eisenhower be court-marshaled today?
Several Presidents had mistresses before and during their time in office.
Lincoln, surely our greatest president who suffered the most in office and made the most difficult and loneliest decisions of any president, was most certainly manic-depressive. And yet Lincoln saved the Union. The greatest figure of the 20th century- Winston Churchill also suffered from depression. Would we be better off today if Lincoln and Churchill were disqualified from service?
Franklin Roosevelt served almost sixteen years as President, taking the country from the depression to the edge of victory in WWII. Roosevelt had a mistress. His affair was discovered by his wife well before he became president.
None of these great men would have withstood the intense scrutiny today.
Our scrutiny of leaders, achievers, and those who dare, weeds out the best, and leaves us with the most mediocre. Perhaps they've never had an affair or a bout of depression, but they are deemed "morally pure"- the only crucible that now seems to matters.
Given the choice, the last person we would ever want to sentence us would be a judge who has never failed or erred in their personal choices. It's their life experience and not their pretense at perfection that gives them the perspective to do their job.
How many Supreme Court nominees in the late 1980's and 1990's were disqualified because they may have smoked marijuana?
Would a brilliant female jurist who had an abortion be disqualified from service today?
"Let he who has not sinned cast the first stone."
Wise words from a failed carpenter. The son of a single woman. A man who consorted with a prostitute.
See you in court.
Tuesday, April 12, 2016
BOB LEVY HAS PASSED AWAY
Longtime political kingmaker (and Judge maker) Bob Levy has passed away.
From the Herald:
From the Herald:
Bob Levy, a fixture in Florida’s Capitol for four decades as a lobbyist for a wide array of causes, died Tuesday in Tallahassee. He was 67 and had been battling cancer.
A long-time resident of Miami Beach, Levy had deep political roots in Miami-Dade County and founded a successful lobbying firm, Robert M. Levy & Associates. He lobbied for a number of cities, including Homestead, Doral and Florida City. He built a cottage industry as a consultant for scores of Miami-Dade judicial candidates and mentored dozens of young lobbyists, many of whom are now elected officials or have successful lobbying practices of their own. He called them “Levites” and they were part of his “tribe.”
A skillful storyteller, Levy was known for gathering people on Sundays in Tallahassee for “family dinner.” He was a vodka aficionado — particularly fond of Ketel One — and he was the pioneer of Miami-Dade Days, an annual civic fly-in to Tallahassee. On that day each year he would don a big white apron and personally serve heaping bowls of paella to hungry guests in the Capitol courtyard.
Levy called Dade Days “a way of bringing a little bit of Miami to Tallahassee.”
Monday, April 11, 2016
SO MUCH FOR PEOPLE NOT READING PRIOR POSTS
Our extremely well written golf post on Jack Nicklaus's amazing win at the Masters in 1986 was roundly ignored, while the comments came flowing in on the prior post about the Dade Prosecutor arrested in Broward for DUI and LSA.
Reports indicate breath and urine were refused.
Reports indicate that the prosecutor may have threatened the job of the arresting officer. If true, this would be a disappointing turn of events.
Because there are no coincidences in life, the case has been assigned to embattled Broweird Judge Destry, who is being challenged by another Dade ASA.
Truth is stranger than fiction.
And Broward is one of the strangest places on earth.
See You In Court.
Reports indicate breath and urine were refused.
Reports indicate that the prosecutor may have threatened the job of the arresting officer. If true, this would be a disappointing turn of events.
Because there are no coincidences in life, the case has been assigned to embattled Broweird Judge Destry, who is being challenged by another Dade ASA.
Truth is stranger than fiction.
And Broward is one of the strangest places on earth.
See You In Court.
Sunday, April 10, 2016
YES SIR! NICKLAUS WINS SIXTH MASTERS IN 86
Jack Nicklaus was 46 in 1986. He was too old. Nobody wins the Masters at the age of 46.
During the week, one of his friends cut out a newspaper article declaring that Nicklaus was too old. He taped the article to the refrigerator in the house Nicklaus had rented for the tournament.
Jack was over the hill. Even Nicklaus may have suspected his days of competing were over He had his son Jack on the bag with him for the tournament.
By Sunday Nicklaus was 4 behind and not even in the discussion. Seve Ballesteros was in the lead. Bernhard Langer and Greg Norman-the White Shark- were hunting for the Green Jacket. On that magic Sunday five different players had a share of the lead as play unfolded.
As he approached Amen Corner, birdies at 9,10,11 had put Nicklaus back in contention. But a bogie at 12 dropped him three back.
But there was life in the Golden Bear.
Sunday April 13, 1986. The fifteenth at Augusta. The start of the greatest back nine charge by the greatest golfer the sport has ever seen. As he approached his second shot on 15, four behind Seve, Jack turned to his son and asked how far a three iron would go on his 202 yard approach shot? Nicklaus chose a four iron and lasered it twelve yards from the hole. He drained the putt for an eagle three and now he was two behind. The crowd swelled. The Bear was on the prowl.
At the par three sixteen Jack hit a sweet five iron. As the ball was in the air he bent down to pick up his tee. "Be right" willed his son Jack out loud- right of the hole would leave him with an easy uphill put.
Without even looking at the ball Nicklaus said "It is". And it was. Jack sunk the birdie putt and now he was minus three over two holes and walking to the seventeenth one behind the leader.
The Seventeenth. Augusta. 1986. Jack Nicklaus. It still gives us chills.
The crowds were now out of control. There is a wonderful documentary called 86 in which everyday people recount what they were doing as Jack made his charge.
A man convinced his wife not to get on their honeymoon flight to Hawaii. There would always been another flight, but probably not another Masters charge by the Golden Bear in his winter.
A group of three friends- one now a judge- pulled into a truck stop in West Virginia and convinced the truckers to switch the channel from a car race to just check in on the Masters. An hour later it was standing room only as Jack walked to the 17th.
And then there was the mother whose teenage son Craig Smith had died fifteen years earlier at age 13 of a rare and painful bone cancer. Nicklaus had been his favorite golfer and he wrote a letter to Jack and they developed a friendship. When the boy told Jack he wore his lucky yellow shirt every Sunday for Jack, Nicklaus started wearing a yellow shirt on Sundays as well. Nicklaus told him that his yellow shirt would a secret just between them.
And there was Jack, in his yellow shirt, playing the final round of the Masters. The shirt a tribute to his young friend who had died many years before. And there was Craig Smith's mother and father, watching and crying.
If you don't do anything else today, watch the Yellow Shirt video here. It's just a few minutes, but it shows the humanity of a great athlete. A humanity all too missing in the stars of sports today.
As he walked to seventeen, a roar went up from the crowd. Seve had hit his ball in the water at the fifteenth. Then he bogeyed the hole. At age 46, written off and forgotten, the best golfer ever was walking to the seventeenth tee, tied for the lead in the Masters.
The man who changed the numbers on the board was shaking as he posted the score. The crowd was roaring. And the Golden Bear had a little more magic left on a spring Sunday at Augusta.
Off the tee at seventeen Nicklaus was way right. But he was still where he wanted to be on his approach. His second shot landed softly on the green and he had an eighteen footer for birdie.
There's a series of photos as Nicklaus comes out of his stance, watches the ball; aims his putter willing the ball to the hole and then raises it in victory. The putt read as if it was breaking to the right. But Nicklaus believed nearby Ray's Creek would affect the grass and the break and that a straight approach would work. It did.
You can see the photo above.
Those who heard it swear they have never heard any noise like it before or since. It was a roar. A roar of admiration and love and shock and joyful surprise that the golfer they loved since he had won his first Masters in 1961 was now winning his record sixth Masters and a record eighteenth majors. Records that have not and probably will not ever be broken. On CBS television Verne Lundquist made the call at seventeen a historic one with a resounding "Yes Sir!" as Jack raised both arms in triumph.
We don't watch much sports any more these days. A few baseball games. A football game here and there. There is so much more to life than sitting and watching sports. But there is magic in a Sunday Masters. Magic that was forever captured on a wonderful spring day in April 1986. Magic that we tune in for to see.
See You In Court tomorrow.
Saturday, April 09, 2016
DADE PROSECUTOR ARRESTED IN BROWARD FOR DUI, LSA
Yes, a Miami-Dade Prosecutor at the DC level was arrested in Broward Friday evening for DUI, LSA with property damage, and child neglect because his/her two children were in the car.
No, there is no reason to re-print their name here. It's already been splashed through the local media. This is the type of event that becomes difficult to live down, even years later and there is no reason for us to pile on a preserve it in perpetuity on the web.
We will NOT print comments with the name of the prosecutor.
Lawyers have a disturbing tendency not to read instructions, so we will write it again:
We will NOT print comments with the name of the prosecutor.
So revel in your Schadenfreude and get on with your life.
Enjoy the rest of the weekend.
See You In Court.
No, there is no reason to re-print their name here. It's already been splashed through the local media. This is the type of event that becomes difficult to live down, even years later and there is no reason for us to pile on a preserve it in perpetuity on the web.
We will NOT print comments with the name of the prosecutor.
Lawyers have a disturbing tendency not to read instructions, so we will write it again:
We will NOT print comments with the name of the prosecutor.
So revel in your Schadenfreude and get on with your life.
Enjoy the rest of the weekend.
See You In Court.
Thursday, April 07, 2016
THE ZEN OF MISTRIALS
Silence can be golden. It can be a powerful courtroom weapon. (ASA John Kastrenakis sitting silently in court for several minutes during closing argument in the Joyce Cohen murder trial. (Now Judge) Kastrenakis was showing to the jury the impact of how long the defendant waited to call the police after her husband was killed-by hit men she had arranged. Go to West Palm and ask Judge K about it. He will be happy to tell you the story.)
Which brings us to Merchant v. State, where one Dwayne Merchant was on trial for first degree murder. As his fate was in the hands of the jury, the bailiff brought to the court's attention that the alternate was the brother of one of the jurors deliberating.
The court had a bit of a meltdown. It confronted the two jurors and chastised them for not mentioning they were related when the court inquired at the beginning of voire dire if any jurors knew anyone else.
But what the court didn't do was: 1) Actually inquire of the jurors if they were related;
2) Ask the jurors if they had spoken about the case;
3) Ask the defendant if he consented to the mistrial.
As the scene unfolded, the defense attorney wisely remained silent. The court declared a mistrial. The defense then moved to dismiss the case for double jeopardy. Judge Tinkler-Mendez denied the motion. Au contraire said our 3rd DCA and Judge Emas: the motion should have been granted. The conviction was reversed and the case remanded with instructions that Mr. Merchant be discharged.
A Rumpole "Well done. Well done indeed." goes out to appellate ace Andy Kawel for the resounding victory.
Thereafter, the case was reset for trial. Merchant filed a motion to dismiss the indictment, contending that he did not consent to the mistrial, that there was no manifest necessity for the trial court’s sua sponte declaration of a mistrial, and that retrial was therefore barred by double jeopardy. In opposition, the State contended that by not affirmatively objecting to the mistrial, and in absence of demonstrable bad faith by the State, Merchant had essentially consented to the mistrial. The State did not agree with the defense’s characterization that the court declared a mistrial sua sponte
As noted by the United States Supreme Court in United States v. Dinitz, 424 U.S. 600 (1976), and reaffirmed by the Florida Supreme Court in Thomason, The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant's request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. Even when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire “to go to the first jury and, perhaps, end the dispute then and there with an acquittal.” Thomason, 620 So. 2d at 1237 (quoting Dinitz, 424 U.S. at 608.)
Doubt about the appropriateness of a mistrial is resolved in favor of the defendant, and the State “must demonstrate ‘manifest necessity’ for the mistrial, a requirement that has been part of this country’s jurisprudence since 1824.” Thomason, 620 So. 2d at 1237 (internal citations omitted). Manifest necessity requires that there be a “manifestly urgent and absolute necessity” for declaring a mistrial. Id. at 1239 (quoting State v. Grayson, 90 So. 2d 710, 713 (Fla. 1956)). Moreover, manifest necessity requires that the trial court evaluate and discuss available alternatives prior to declaring a mistrial where the defendant does not consent to such an action. “Manifest necessity for declaring a mistrial without the defendant’s concurrence may be demonstrated only if the trial court has considered and rejected all possible alternatives.” Torres v. State, 808 So. 2d 234, 235 (Fla. 2d DCA 2001). See also Thomason, 620 So. 2d at 1238 (observing that manifest necessity requires “trial judges, at the very least, to evaluate and discuss available alternatives before declaring a mistrial over the objection of the defendant.”)
And now we get to the power of silence. In the face of Judge Tinkler-Mendez declaring a mistrial, the defense remained silent.
The State contended below, and on appeal, that Merchant should be deemed to have “consented” to the mistrial because neither he nor his counsel voiced an objection, thus waiving his right to later assert a double jeopardy bar to retrial. However, this position is without merit, as the law on this point is well-established: a defendant’s mere failure to object to a declaration of mistrial is not tantamount to consent. See State v. Grayson, 90 So. 2d 710, 713 (Fla. 1956) (noting that “silence of the defendant on trial for a crime or his failure to object” does not constitute consent to the trial court’s declaration of a mistrial);
Thus, absent the defendant’s consent to the declaration of a mistrial, retrial is barred by double jeopardy unless the State meets its “heavy burden to show that the mistrial was justified by manifest necessity.” Spaziano, 429 So. 2d at 1346. The record in the instant case reveals no manifest necessity for declaring a mistrial and further reveals that the trial court failed to evaluate, discuss or consider available alternatives before declaring a mistrial and discharging the jury.
The trial court’s decision to declare a mistrial, without the consent of the defendant, appears to have resulted from a series of assumptions and inferences, rather than from competent record evidence. Even if we were to accept the assumption that Kira and Kevin are brother and sister, this surely did not—without more—necessitate a mistrial. There is nothing in the record to indicate that Kira and Kevin heard the trial court’s request, made to the entire venire at the commencement of the jury selection process, for jurors to notify the court if any prospective jurors knew each other. Similarly, there is no evidence in the record that Kira and Kevin discussed the testimony or evidence with each other, or otherwise violated the trial court’s daily admonitions to the jury.
Thus, the only information the trial court had before it was a statement from the bailiff that Kira and Kevin were siblings and that Kevin (having been discharged as an alternate juror) was waiting outside the courtroom to drive Kira home. This alone was hardly sufficient to warrant a mistrial. However, the court did not question the bailiff in open court or permit the attorneys to do so. The court did not bring Kevin Criado into the courtroom to question him or permit the attorneys to do so. The court did not bring Kira Criado into the courtroom to question her or permit the attorneys to do so. The court acknowledged the option of conducting an inquiry, but failed to engage in one.
The court did not ask the defense for its suggestions or inquire whether the defendant agreed to a mistrial. The court did not solicit or receive any input from the State or defense regarding any possible alternatives to a mistrial. Instead, the court simply declared a mistrial, concluding it had “no option.”
The court’s conclusions were based almost entirely on assumption, inference and speculation. Nowhere are these conclusions confirmed on the record, particularly the central assumptions that Kira and Kevin are siblings and that they discussed the evidence or testimony during the course of the trial. The trial court erred in failing to conduct any inquiry and, by relying instead on assumption, inference and speculation, abused its discretion in concluding that a mistrial was justified by manifest necessity.
At some point enough should be enough. The trial court was chastised repeatedly throughout this opinion. But even in the conclusion, Judge Emas hammers it home:
The trial court’s failure to make an inquiry, develop a proper record, and consider alternatives before declaring a mistrial forecloses a conclusion that a mistrial was even warranted, let alone one supported by manifest necessity. Given that the mistrial was declared without the defendant’s consent, and in the absence of manifest necessity, double jeopardy precluded a retrial.7 We are therefore compelled to vacate the judgment and sentence on Count One of the Indictment, and remand with instructions to enter an order discharging Defendant as to Count One.
All because the defense attorney kept his mouth shut when the court declared a mistrial. Well done.
It's Masters Weekend, which means we will be at our favourite watering hole watching the action at Augusta.
See you in court.
Which brings us to Merchant v. State, where one Dwayne Merchant was on trial for first degree murder. As his fate was in the hands of the jury, the bailiff brought to the court's attention that the alternate was the brother of one of the jurors deliberating.
The court had a bit of a meltdown. It confronted the two jurors and chastised them for not mentioning they were related when the court inquired at the beginning of voire dire if any jurors knew anyone else.
But what the court didn't do was: 1) Actually inquire of the jurors if they were related;
2) Ask the jurors if they had spoken about the case;
3) Ask the defendant if he consented to the mistrial.
As the scene unfolded, the defense attorney wisely remained silent. The court declared a mistrial. The defense then moved to dismiss the case for double jeopardy. Judge Tinkler-Mendez denied the motion. Au contraire said our 3rd DCA and Judge Emas: the motion should have been granted. The conviction was reversed and the case remanded with instructions that Mr. Merchant be discharged.
A Rumpole "Well done. Well done indeed." goes out to appellate ace Andy Kawel for the resounding victory.
Thereafter, the case was reset for trial. Merchant filed a motion to dismiss the indictment, contending that he did not consent to the mistrial, that there was no manifest necessity for the trial court’s sua sponte declaration of a mistrial, and that retrial was therefore barred by double jeopardy. In opposition, the State contended that by not affirmatively objecting to the mistrial, and in absence of demonstrable bad faith by the State, Merchant had essentially consented to the mistrial. The State did not agree with the defense’s characterization that the court declared a mistrial sua sponte
As noted by the United States Supreme Court in United States v. Dinitz, 424 U.S. 600 (1976), and reaffirmed by the Florida Supreme Court in Thomason, The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant's request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. Even when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire “to go to the first jury and, perhaps, end the dispute then and there with an acquittal.” Thomason, 620 So. 2d at 1237 (quoting Dinitz, 424 U.S. at 608.)
Doubt about the appropriateness of a mistrial is resolved in favor of the defendant, and the State “must demonstrate ‘manifest necessity’ for the mistrial, a requirement that has been part of this country’s jurisprudence since 1824.” Thomason, 620 So. 2d at 1237 (internal citations omitted). Manifest necessity requires that there be a “manifestly urgent and absolute necessity” for declaring a mistrial. Id. at 1239 (quoting State v. Grayson, 90 So. 2d 710, 713 (Fla. 1956)). Moreover, manifest necessity requires that the trial court evaluate and discuss available alternatives prior to declaring a mistrial where the defendant does not consent to such an action. “Manifest necessity for declaring a mistrial without the defendant’s concurrence may be demonstrated only if the trial court has considered and rejected all possible alternatives.” Torres v. State, 808 So. 2d 234, 235 (Fla. 2d DCA 2001). See also Thomason, 620 So. 2d at 1238 (observing that manifest necessity requires “trial judges, at the very least, to evaluate and discuss available alternatives before declaring a mistrial over the objection of the defendant.”)
And now we get to the power of silence. In the face of Judge Tinkler-Mendez declaring a mistrial, the defense remained silent.
The State contended below, and on appeal, that Merchant should be deemed to have “consented” to the mistrial because neither he nor his counsel voiced an objection, thus waiving his right to later assert a double jeopardy bar to retrial. However, this position is without merit, as the law on this point is well-established: a defendant’s mere failure to object to a declaration of mistrial is not tantamount to consent. See State v. Grayson, 90 So. 2d 710, 713 (Fla. 1956) (noting that “silence of the defendant on trial for a crime or his failure to object” does not constitute consent to the trial court’s declaration of a mistrial);
Thus, absent the defendant’s consent to the declaration of a mistrial, retrial is barred by double jeopardy unless the State meets its “heavy burden to show that the mistrial was justified by manifest necessity.” Spaziano, 429 So. 2d at 1346. The record in the instant case reveals no manifest necessity for declaring a mistrial and further reveals that the trial court failed to evaluate, discuss or consider available alternatives before declaring a mistrial and discharging the jury.
The trial court’s decision to declare a mistrial, without the consent of the defendant, appears to have resulted from a series of assumptions and inferences, rather than from competent record evidence. Even if we were to accept the assumption that Kira and Kevin are brother and sister, this surely did not—without more—necessitate a mistrial. There is nothing in the record to indicate that Kira and Kevin heard the trial court’s request, made to the entire venire at the commencement of the jury selection process, for jurors to notify the court if any prospective jurors knew each other. Similarly, there is no evidence in the record that Kira and Kevin discussed the testimony or evidence with each other, or otherwise violated the trial court’s daily admonitions to the jury.
Thus, the only information the trial court had before it was a statement from the bailiff that Kira and Kevin were siblings and that Kevin (having been discharged as an alternate juror) was waiting outside the courtroom to drive Kira home. This alone was hardly sufficient to warrant a mistrial. However, the court did not question the bailiff in open court or permit the attorneys to do so. The court did not bring Kevin Criado into the courtroom to question him or permit the attorneys to do so. The court did not bring Kira Criado into the courtroom to question her or permit the attorneys to do so. The court acknowledged the option of conducting an inquiry, but failed to engage in one.
The court did not ask the defense for its suggestions or inquire whether the defendant agreed to a mistrial. The court did not solicit or receive any input from the State or defense regarding any possible alternatives to a mistrial. Instead, the court simply declared a mistrial, concluding it had “no option.”
The court’s conclusions were based almost entirely on assumption, inference and speculation. Nowhere are these conclusions confirmed on the record, particularly the central assumptions that Kira and Kevin are siblings and that they discussed the evidence or testimony during the course of the trial. The trial court erred in failing to conduct any inquiry and, by relying instead on assumption, inference and speculation, abused its discretion in concluding that a mistrial was justified by manifest necessity.
At some point enough should be enough. The trial court was chastised repeatedly throughout this opinion. But even in the conclusion, Judge Emas hammers it home:
The trial court’s failure to make an inquiry, develop a proper record, and consider alternatives before declaring a mistrial forecloses a conclusion that a mistrial was even warranted, let alone one supported by manifest necessity. Given that the mistrial was declared without the defendant’s consent, and in the absence of manifest necessity, double jeopardy precluded a retrial.7 We are therefore compelled to vacate the judgment and sentence on Count One of the Indictment, and remand with instructions to enter an order discharging Defendant as to Count One.
All because the defense attorney kept his mouth shut when the court declared a mistrial. Well done.
It's Masters Weekend, which means we will be at our favourite watering hole watching the action at Augusta.
See you in court.
Tuesday, April 05, 2016
RIFKIN ROARS
She's seen it all, and done it all, almost. She's handled the tough Miami murder cases for at least two decades.
And now Dade ASA Abbe Rifkin wants to be a judge. She's done everything except take three hour lunches, sandwiched between denying a motion to suppress in the morning and a rule 3 in the afternoon. Now Ms. Rifkin will be challenging outspoken Broward Judge Matthew Destry in the upcoming judicial election.
The New Times newspaper article is here. Rifkin is quoted as saying: "It’s 2016 and an election year, so I’ve decided to take it to the people."
Wow. We just had a sixties flash-back. Taking it to the streets. Some ratty jeans; a tie-dyed shirt; a sit in; a march; tune in-turn-on baby. Feel the Bern!!
Anytime a Dade lawyer takes the bench in Browerid, it's a good day.
See You In Court.
And now Dade ASA Abbe Rifkin wants to be a judge. She's done everything except take three hour lunches, sandwiched between denying a motion to suppress in the morning and a rule 3 in the afternoon. Now Ms. Rifkin will be challenging outspoken Broward Judge Matthew Destry in the upcoming judicial election.
The New Times newspaper article is here. Rifkin is quoted as saying: "It’s 2016 and an election year, so I’ve decided to take it to the people."
Wow. We just had a sixties flash-back. Taking it to the streets. Some ratty jeans; a tie-dyed shirt; a sit in; a march; tune in-turn-on baby. Feel the Bern!!
Anytime a Dade lawyer takes the bench in Browerid, it's a good day.
See You In Court.
Monday, April 04, 2016
ANOTHER TYPE OF PRISON
In the good ol' USA, we believe in second chances. Except when it comes to crime and punishment. Then it's lock-em-up-and-throw-away-the-key. With 5% of the world's population, the US has 25% of the world's prisoners. We spend 80 BILLION dollars a year on incarcerating prisoners in the US.
Germany does it differently, as was detailed on Sunday night's 60 Minutes episode. You can view it and the web story here.
In Germany, prison isn't meant to punish, it's designed to mirror normal life as much as possible. Among the privileges enjoyed by German prisoners: immaculate facilities, organized sports, video games and keys to their own cells. Inmates can wear street clothes and can freely decorate their own cells -- keeping all sorts of household objects that American prison guards might consider dangerous. Prisoners who demonstrate good behavior can even leave prison for work or weekend getaways. Average Americans may balk at this level of freedom for convicted criminals, but prisons in Germany cost less and produce far fewer repeat offenders than U.S. prisons.
...
Germany spend less than the US per capita on it's prisoners and the recidivism rate is 50% less than the US.
So Germany does it better and cheaper. And the main difference is that Germany believes the primary goal of prison is NOT punishment, but rehabilitation. And that lack of "red meat" punishment can't make Bible-worshiping Republicans happy. After all, the bible says nothing about forgiveness and the goodness of people, right?
See You In Court.
Germany does it differently, as was detailed on Sunday night's 60 Minutes episode. You can view it and the web story here.
In Germany, prison isn't meant to punish, it's designed to mirror normal life as much as possible. Among the privileges enjoyed by German prisoners: immaculate facilities, organized sports, video games and keys to their own cells. Inmates can wear street clothes and can freely decorate their own cells -- keeping all sorts of household objects that American prison guards might consider dangerous. Prisoners who demonstrate good behavior can even leave prison for work or weekend getaways. Average Americans may balk at this level of freedom for convicted criminals, but prisons in Germany cost less and produce far fewer repeat offenders than U.S. prisons.
...
In Germany, 75 percent of prisoners sentenced to life are paroled after 20 years or less, even Bernd Junge, a contract killer who shot a woman to death. Should Junge, who Whitaker meets on an unsupervised weekend furlough, be offered a future? "Yes, he should," says Joerg Jesse, a psychologist and the director of prisons in the German state of Mecklenburg-Western Pomerania. Jesse says German inmates deserve rehabilitation, not retribution, during their prison stays.
The real goal is re-integration into society, train them to find a different way to handle their situation outside, life without further crimes, life without creating new victims," says Jesse. "We cannot see the sense in just locking people up for their whole life. Your prisons will fill up and you'll have to build new prisons and so on and I think that was the situation in the U.S.
So Germany does it better and cheaper. And the main difference is that Germany believes the primary goal of prison is NOT punishment, but rehabilitation. And that lack of "red meat" punishment can't make Bible-worshiping Republicans happy. After all, the bible says nothing about forgiveness and the goodness of people, right?
See You In Court.
Saturday, April 02, 2016
THE CURIOUS INCIDENT OF RUMPOLE AWAY
Yesterday (Friday) afternoon we were in the Southern District of NY and after a late morning court contretemps we repaired to Per Se ( do not miss the Australian Kampachi and Avocado sorbet), where we had a truly spectacular lunch. That was followed by our viewing of the thoroughly enjoyable and remarkably staged "The Curious Incident Of the Dog At Night." We ended the night with a long enjoyable repast at Sake Bar Hagi.
The point of recounting our daily travails is not to engage in a rodomontade of our daily existence, but to reflect upon the shortcomings of our South-Beach-centric existence in Miami.
The glory of NYC, or Boston or Chicago, are the neighborhoods.
The intensity of lower Manhattan, the elegance and refined and relaxed pace of the Upper West Side and Per Se, and the "showtime" excitement of Broadway.
New York has existed for four hundred years. The imminent melting of the ice caps means that not only will NYC not survive the next four hundred years (but many of the hot-dog vendors will-they are a tough bunch), but much of the 90,000 miles of US coast line is in peril of being submerged within the next 100 years.
But don't worry about that too much. Ted Cruz and the Republicans are praying.
Where were we? Oh yes. Culture.
There is something to be said for spending a leisurely afternoon perusing Chinese Art and a century of crime photos (both exhibitions are currently at the Met) and then having a meal at something other than Chicken Kitchen.
Sometimes it's just good to get away- especially if the client is paying for it.
Enjoy the Weekend, and NO, Jeb Bush will not be running for State Attorney. April Fool.
The point of recounting our daily travails is not to engage in a rodomontade of our daily existence, but to reflect upon the shortcomings of our South-Beach-centric existence in Miami.
The glory of NYC, or Boston or Chicago, are the neighborhoods.
The intensity of lower Manhattan, the elegance and refined and relaxed pace of the Upper West Side and Per Se, and the "showtime" excitement of Broadway.
New York has existed for four hundred years. The imminent melting of the ice caps means that not only will NYC not survive the next four hundred years (but many of the hot-dog vendors will-they are a tough bunch), but much of the 90,000 miles of US coast line is in peril of being submerged within the next 100 years.
But don't worry about that too much. Ted Cruz and the Republicans are praying.
Where were we? Oh yes. Culture.
There is something to be said for spending a leisurely afternoon perusing Chinese Art and a century of crime photos (both exhibitions are currently at the Met) and then having a meal at something other than Chicken Kitchen.
Sometimes it's just good to get away- especially if the client is paying for it.
Enjoy the Weekend, and NO, Jeb Bush will not be running for State Attorney. April Fool.
Subscribe to:
Posts (Atom)