Motion to Disqualify by Rumpole21 on Scribd
THE CAPTAIN REPORTS:
THE REAL SCOOP .............. (we barely made it up to the courthouse just in time to pull the court file and review the proceedings).
First, the Judge involved in the case was not Al Milian. It was Judge Stephen Millan. The case is State v. Navarro, F13-30148. The charge is Manslaughter and the case was tried during the week of 10/17 before Judge Millan. For the defense: Dan Lurvey.
Last Thursday, after the jury had already been sworn, the sworn jurors were gathered outside the courtroom on the 4th floor of the REGJB. The bailiff, Victor, presented the jurors with envelopes that were going to be used to contain the jurors trial notepads. Victor instructed the jurors to write their names and juror numbers on the outside of the envelopes. One of the jurors asked about these details and who might become aware of the notes, to which Victor replied: "Don't worry. The bad guy won't see it". This was all witnessed by defense attorney Eddie Pereira, who was walking by the courtroom at that exact moment of the statement.
Judge Millan conducted an evidentiary hearing on the matter. Pereira testified to what he had heard. Victor testified that he said: "No good guys, no bad guys, no other person will see the notes. Only the judge, if requested". During the hearing, Lurvey also questioned Victor on a statement he had made about Lurvey in the jurors presence. The statement regarded Lurvey's legal skills. Victor said: "if you are in trouble, this is the guy to hire .... his dad was a member of the Miami-Dade bomb squad".
One other troubling note. When Lurvey first brought these issues to the attention of the Judge, Lurvey asked the Judge not to share the allegations with his bailiff, because Lurvey knew there would need to be an evidentiary hearing. During the evidentiary hearing, Victor admitted that, during the recess, he met privately with the Judge and Millan apprised Victor of the allegations of impropriety. After the conclusion of the evidentiary hearing, the Judge did not, sua sponte, declare a mistrial, instead he forced Lurvey to request a mistrial of the case. The Court did grant Lurvey's motion.
Then the real fun began. Lurvey then moved for disqualification of the Judge. Apparently, Judge Millan, rather than calling "balls and strikes" during the hearing, instead took a much more adversarial role, in support of his bailiff and challenging the credibility of both Mr. Lurvey and Mr. Pereira. Additionally, Lurvey pointed out in his Motion to Disqualify that, the court "departed from its role of neutrality when it spoke in private to its bailiff, prior to the commencement of the evidentiary hearing, regarding the accusations being brought by defendant against the trial court's bailiff providing an unfair advantage to the bailiff scheduled to testify as to misconduct before defendant's jury".
After much wrangling, Judge Millan today did grant the Motion to Recuse and the case has been reassigned to Judge Trawick.
If any of our readers can fill in any more of the blanks, please email us or post in the comments section.
***We have Lurvey's eight page Motion To Disqualify and will email it to Rumpole so he can add it to this post; (we haven't figured out how to do that yet).
CAPTAIN OUT .......
Captain4Justice@gmail.com
Baliff's conduct cause mistrials and recusals. Wonder how many go by that are not caught. Most are caught because of blind luck. There should be some type of training so these clowns do not affect the legal system.
ReplyDeleteVictor is a clown! He has always been a big mouth; thinks he is funny but he isn't. There are also other rumors about him banging a prosecutor during the investiture of Judge Millan....
ReplyDeleteMillan obviously is not the brightest in telling Victor the allegations and thinking that Lurvey wouldn't question him.......
PDs and ASAs in this division could see this coming a mile away and probably should have done something about it. The problem is the PDs and ASAs have to be there every day and worry about burning bridges.
ReplyDeleteVictor is a great guy, warm personality, and busts his ass to regulate traffic into and out of that tiny courtroom. (On a side note, its a travesty Millan is forced into that room. It means no family members, no interested parties can ever witness a case being called).
Victor also plays up his warm personality with jurors and venire persons Ive seen it plenty. He makes jokes and tries to make them feel comfortable. He does, indeed, comment often on the lawyers for both sides. Im 100% certain he only says things he considers compliments, because that is the kind of guy he is, but nonetheless its not hard to imagine he could say something like, "If youre in trouble, this is the guy". Meaning it as a compliment, but of course implying the defendant was in trouble.
Judge Millan, also a nice guy, also plays it up a bit too much. He regularly gets off the bench and goes out in the hallway to address the jury. Im sure its mostly about scheduling, dinner, practical issues, and he usually comes back and puts on the record what he said. But still -- a judge address a jury outside the presence of counsel is inviting trouble.
All said: both the judge and the bailiff are likeable and dedicated to their jobs. Both have warm personalities, but both need to tighten up in and around the courtroom. Sometimes silence is fine. Let the jurors stand there, even if they are bored. As for the judge, sometimes just make a ruling or take a plea without the need to ad-lib for ten minutes. Your calendar will go much quicker. And you'll avoid saying things that can be misconstrued.
- former division ASA/APD
It's too bad because Victor is probably the nicest bailiff in the building and I'm sure he feels terrible about this.
ReplyDelete
ReplyDeleteDoes anyone know why this case is on Executive Assignment and the SAO from Monroe County is handling the case for the State of Florida. Erika Isidron for the State.
Cap Out ...
We who labor here seek only .... a crapshoot.
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ReplyDeleteThis Comment was written in response to our Post announcing the appointment of Judge Alexander Bokor to the County Court.
This is sad. Governor Scott once again disappoints and misses the opportunity to diversify the Court. Not to discredit Bokor, but really when will Governor Scott listen to the multitude of articles that call for diversity appointments. I am sure all the candidates were more than qualified yet another white male gets the appointment. Sad.
Monday, October 24, 2016 3:10:00 PM
The Captain Reports:
to 3:10 PM.
Facts always work best for me.
Fact #1: The last four judicial appointments by Governor Scott in Miami-Dade County were Gina Beovides, Charles Johnson, Laura Stuzin, Diana Vizcaino; (only one white male).
Fact #2: The six names sent to the Governor by the JNC were: Bokor, and Julie Nelson, Joe Mansfield, Elijah Levitt, Raul Cuervo, and Ramiro Areces. If you meant "black" when you said "diversity", then you need to take that up with the JNC, not Governor Scott. The JNC received 27 applications, including two from black males, (and both were granted an interview). Despite that, neither made the final cut of six names that were sent to the Governor. Or maybe you need to take it up with the black attorneys in Miami-Dade that are not filing more applications when there is an opening on the bench. If you are speaking of another minority when you spoke about more diversity, please let me know what other minority group of attorneys you were speaking about. It's certainly not females. Hispanics, Asians, Haitians; you tell me?
Fact #3: The Miami Dade Judiciary is currently comprised of 68 Female Judges and 53 Male Judges. In Circuit, the breakdown is 41-37; in County the breakdown is 27-16.
Seems to me that the Governor needs to appoint mostly male judges over his final two years in office to make up the gender gap caused by the dominance of female judges (56%) on the bench. (j/k).
Agreed unless he keeps appointing hot one like Diaz.
ReplyDeleteRiddle me this. If you are a black lawyer, why would you live the freedom and independence of an exciting job where you get to help people for the misery and suffocation which is life as a Circuit Court Judge? As advocates, lawyers can change the world, as judges, lawyers are just cogs in a machine.
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ReplyDeleteI'm curious about who the blog thinks gives the best voir dire in the building?
ReplyDeleteCaptain - you know Julie Harris is black, right? That's why the comment was made.
ReplyDeleteThe new SAO website has mugshots of still as yet unconvicted people on its front page?
ReplyDeleteWhat a load of bullshit
3 DCA decision in Bloch v. Del Rey:
ReplyDeletehttp://www.3dca.flcourts.org/Opinions/3D16-2004.pdf
Check out footnote 13.
Too many unqualified Little girls playing judge on the bench/.
ReplyDeleteMillan and Bailiff are both nice guys but have no business running a criminal division. Between the two of them they have as much sense as a gnat.
ReplyDeleteVictor is actually a nice guy but, has a big mouth.
ReplyDeleteLooks like Judge Millan will get a JQC complaint for this sad mess.
Kudos for Eddie bringing it up, not a comfortable position to be in.
ReplyDelete
ReplyDeleteTHE CAPTAIN REPORTS:
JUDGE BLOCH LOSES HIS APPEAL .....
The 3rd DCA issued an Opinion today in the case of Jason Bloch v. Marcia del Rey. Judge Emas, writing for the three judge panel concluded:
"Because we hold that Del Rey substantially complied with the requirements for full and public disclosure of financial interests, and that Del Rey properly qualified as a judicial candidate, we do not address the trial court’s alternative basis for dismissal."
http://www.3dca.flcourts.org/Opinions/3D16-2004.pdf
So, it's sayonara for Judge Bloch on January 1, 2017 unless of course he gets the JNC to send his name up to Governor Scott and Scott appoints him to Judge Blake's open seat, which would occur on or about December 31, 2016, ala Fleur Lobree.
CAPTAIN OUT .....
Victor & the Judge are like Abbot & Costello. They could get roles in a My Cousin Vinny sequel. But I like them anyway! Unless I am the one on trial.
ReplyDeleteMillan and Victor are both top notch and first class. Everybody in that court wether defendant witness or lawyer is treated kindly and with respect. Geez! A mistake like that could be made by anyone. Remember they are dealing with people 10 hours a day 5 days a week. Lighten up.
ReplyDelete
ReplyDeleteto 8:29 AM.
Thank you for pointing that out. I did know that she is black so that was an error on my part.
I certainly agree that all involved in the process could do a better job with appointing blacks to the bench. I have attended several forums and seminars that discussed the cause. And, as I pointed out, they start at the level of black attorneys need to apply for the openings, JNC's need to send black candidates up to the Governor and then the Governor needs to appoint qualified black attorneys to the bench.
There are ten black judges on the bench in Miami-Dade County:
Bagley, Hendon, Smith, Thomas, Prescott, and Trawick in Circuit. Graham, Thomas, Seraphin, and Brinkley in County.
Here is the latest study published by the Bar:
http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/ca7d67fe80c1938585257e7a0045f0bb!OpenDocument
“Miami-Dade is one of the most diverse counties in the state of Florida. Yet there are no black women who serve on the circuit court bench for the 11th Judicial Circuit in and for Miami-Dade County and only two black women who serve the Miami-Dade county bench,” the press release said. “Of the 123 judges who serve Miami’s circuit and county benches, only 10 (8 percent) are black, while over 500,000 (19 percent) of Miami-Dade’s overall population consists of individuals who identify as black or African-American. In Broward County, the most diverse county in the state, of the 90 judges in circuit and county courts, only 6 (7 percent) are black. In Palm Beach County, of the 54 judges in circuit and county courts, 5 (9 percent) are black.”
What the study does not say is that the total number of black attorneys in the State is something like 3%; (I couldn't find the most up to date numbers).
One of the two black justices on the Florida Supreme Court, James Perry, is retiring in December. It will be interesting to see who the Governor names to that opening. With nearly every important vote on the court currently running 5-2 against Scott's positions, no doubt the new justice will be in the mold of Canady and Polston. I doubt he will find anyone that conservative that is also black. That leaves Peggy Quince as the lone black justice and she is scheduled to retire in two years.
Cap Out .....
Was lurvey's dad really on bomb squad? Cool.
ReplyDeleteDan Lurvey is the ultimate professional. This is as good a motion as we have read in this area of the law. Dan is truly THE MAN to see (Which is the title of the biography of the great trial lawyer Edward Bennett Williams).
ReplyDeleteWell done Dan Lurvey, Well done indeed.
Judge Phil Cook passed away. He was a real gentleman. All judges should be like Phil. Sorry to see him go.
ReplyDeleteGood point made about the effectiveness of black lawyers. Society is much better off if the black lawyers stay lawyers. Turning a black lawyer into a judge is a waste of a lawyer.
ReplyDeleteReal PD says
ReplyDeleteGood to see a private fighting the fight.
This comment has been removed by the author.
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ReplyDeleteThanks for the tip 8:42 am. Judge Cook was part of "The Greatest Generation", fought in WW 2 and liberated a concentration camp in 1945. On the bench, he was all class, a real gentleman, and showed respect for all that appeared before him.
Here is the obit from the Herald:
Judge Philip Cook passed away on October 25 at age 91. While he built his life in Miami, he was born in New York. In 1945 while serving in the U.S. army, Phil helped liberate Mauthausen, a Nazi concentration camp. In 1950, he married Florence, and together they had three children: Jill (Gary and children Jacki, Rocky and Kira), Vicki (Michael and children Samantha and Zachary) and Michael (Lorena and children Gabby and Noah). Phil attended UM law school and practiced for 30 years, then served as a judge for another 30 as one of the Miami law community's favorites. Services will be held at Mount Nebo Memorial Gardens on Thursday, 10/27 at 3:30 p.m.
I was at Phil Cook's funeral. What I heard was amazing. He was a world war 2 vet, serving as a medic. He helped liberate a concentration camp. His family explained what I assumed about Phil. He was the most kind and fair person who loved everyone.
ReplyDeleteMotion denied as legally insufficient due to insufficient affidavit. A nice trick they use that many lawyers miss.
ReplyDeleteDan's Mom says:
ReplyDeleteThanks Rumpole.
Andrea Cunhill wrote the motion to recuse rumpole. Everyone knows that. She's the real brains of the operations.
ReplyDelete
ReplyDeleteto 6:14 pm.
Wrong. The Motion was Granted, the Judge took himself off the case and the case has since been reassigned to Trawick.
to 6:34 am.
Her last name is CUNILL. Ande is a fine lawyer and is second chair on this case.
Cap Out .....
Ande Cunill is an awesome lawyer.
ReplyDeleteRe: the black judges-- I have tried cases before Judges Hendon, Smith and Thomas. All of them are fine trial and smart trial judges. Better than 90% of our white and Hispanic judges. Judge Hanzman is #1. Bagley is kind of an odd bird, very opinioned and not afraid to call out lawyers. But he usually makes the right decision and is pretty smart, though a little arrogant but better than most. Trawick seems fine as well but haven't had the pleasure of a trial, just some hearings.
ReplyDeleteSix names sent up to Governor for Judge Blake's spot: Victoria Delpino, Jason Dmitris, Ayana Harris, Spencer Multack, Lourdes Simon, Andrea Wolfson. Thoughts?
ReplyDeleteObviously Cunill is a very good lawyer....but don't ignore that the motion wrote itself....Millan's behavior was inexcusable....he tampered with a witness and obstructed justice.....granting the motion was the first and only smart thing he did in this case.
ReplyDeleteTHE CAPTAIN REPORTS:
ReplyDeleteAnd your next Circuit Court Judge, replacing Judge Blake is:
One of the six names sent to the Governor today:
Jason Dimitris
Ayana Harris
Spencer Multack
Victoria del Pino
Lourdes Simon
Andrea Ricker Wolfson
Cap Out .......
U.S. marshala tackle and taze an attorney who yelled at a federal judge to release from custody a client that had been acquitted but had a hold for pending charges in another state. Lawyer cited for "failing to comply with a federal lawful order" and "causing a disturbance" by Federal Protective Sevice officers.
ReplyDeletehttp://www.oregonlive.com/oregon-standoff/2016/10/us_marshals_use_of_force_again.html
All losers....
ReplyDeleteThe JNC screwed up here. These 6 are all good for different reasons, but Bloch should have gotten out. He had a very strong showing against someone who had money and lots of backing (for all the wrong reasons). Anyone who has something negative to say about Bloch has not practiced before him. If you don't like him, he probably just did not rule your way and/or made you work. He had done what is legally right, despite political pressures. You CANNOT say that for a large percentage of the judiciary.
ReplyDeleteAll the JNC has done now is empowered Hector Lombana - if he does not like you (for whatever reason), he will waste resources and time to bring you down. This was a chance by the JNC to go beyond politics, but I guess it's cynical to think this is anything but.
Sad day
Of our Black Judges, I think that Hanzman and Bagley are real good. Hanzman remembers where he came from and is good to all. He graduated #5 from his law school class at Howard University.
ReplyDeleteWhat happened to weekly NFL picks??!! I need a new suit!
ReplyDeleteYou think Hanzman is Black? Seriously or is this an inside joke?
ReplyDeleteWait, Judge Hanzman is black?
ReplyDelete