COMMUNICATION

Where in the world was Rumpole on Thursday? 

If you said "The Constitution Cafe" located in the Ferguson Federal Courthouse (and there is no motto "abandon hope all ye who enter here" above the entrance- you just need the proper counsel) you would be correct. 

This is a story about communication. Or the lack thereof. 

The federal government can send a spacecraft to Mars which is approximately 249 million miles away. They can send messages to the spacecraft telling it to stop or turn or dig or tweet to president elect Trump.

We've been to the moon. We saw Armstrong live as he stepped on the moon. 

Any grade school child can text, tweet, email, facebook, snap, or use any other method of communication on their $99 dollar cell phone to speak to anyone, or everyone, in the world. 

In short we live in the era of instantaneous digital communication. Some of it is truly miraculous. Doctors at John Hopkins can diagnose and treat a patient in Africa using facetime. 

BUT- the federal court system- the judges, the prosecutors and the clerks, cannot coordinate the simple signature of a person on a piece of paper electronically. The story you are about to read is true. The names have been changed to protect the indicted. 

It was Thursday, December 29, 2016. The day broke warm and early in Miami. The cold front that has swept the country had not yet poked its icy fingers to the southern tip of Florida. Sweat glistened on our brow as we trudged from the garage to the King building at the start of our odyssey. 

More than a week ago a Federal Magistrate Judge set a simple bond for a client. A few people sign as personal sureties, and a modest sum of cash is to be deposited into the registry of the court. A Nebbia requirement (literally in latin "make it take an extra day") was imposed. 

First, let's play Find the AUSA. To be fair, the dedicated prosecutor was working, and a few phone calls and a quick review of some mortgages and bank statements and we had a Nebbia stipulation. 

We call the Magistrate. "We don't do bonds" is the message we get (from the hopefully new) clerk. "Call the Mag section". Which we do. "Is the bond signed?"
R- "No". Clerk- "why are you calling us then?"
R-"right" click.

Back to the Magistrate. But we don't call. We walk to chambers. We get in and we get a signature. So far so good. But let's stop for a moment. 
Why can't we file the paperwork? Have the AUSA approve it electronically. Have the Court approve it electronically. And then have the clerk's process it? 

Oh, wait. This isn't an easy thing- like sending a super-sonic  missile into a window of a building eleven thousand miles away with the navigation being done by satellite and from a submarine 800 feet under water. These are papers to be signed at various places all within a four square block area. 

We loosen our tie and walk to the Atkins Building and go the Mag section.  Clerk- "Have you deposited the money?"  Rumpole- "right" and we leave. 
We walk across the street to the Ferguson courthouse. We go to eight. We take a picture of the empty Constitution Cafe and then we walk into the Financial Section of the Clerk's office. 

A rather severe woman scans our papers. She frowns. She makes several disturbing noises. She grumbles. She demands the funds, which we produce. "Oh no no no no no. This is not a bank's cashier's clerk check issued by the bank of South Dakota. Those are the only funds we receive."  
No- she didn't say that- but almost. 

She eyes us suspiciously. We fill out some IRS forms. Apparently the government will now will be deducting a "clerk's fee" from our Trust account from now on. Or something like that. We stopped reading at page 11. 
Copies are made and handed back to us with a receipt that if read carefully also provides for 25% off all Kimberly-Clark paper products at Target on Tuesdays. 

"Back to the Magistrate Section at Atkins" she says. We look over her shoulder. The courthouse and clerk's office is about three football fields away. Granted it would take the Dolphins several hours to cover the distance, but still. 
"You can't send those documents to the Magistrate section?" 

Remember that scene in Oliver when he is eating his gruel and says "Please, sir, may I have some more?"

You get the idea. 

We trudge across the street, back to Atkins, back to the Mag section, and by 12:30, we accomplished the following-  One signature of a nice AUSA; one signature of a bored Magistrate; one signature of a financial section clerk; about five pieces of paper signed and filed. And all it took about (according to our fit-bit) 7,655 steps, and four and one half hours- all within the confines of a half a square mile. 

A few hours later a grateful family called to report the release and return of their loved one- never- since they have hired proper counsel- to return to FDC. 

Happy New Years. 

SOCIAL MEDIA

The President-elect of the United States tweets. 

Should Judges engage in social media? 

Should they blog about legal or social issues? 

Should they explain, via a blog, why they ruled a certain way? 

Should they tweet? 

Could they blog about their favourite restaurant or book or movie or play or museum (assuming they read literature and are a patron of the arts)?

Or should they remain cloistered in their chambers, unknowing and unknowable to the general public?

Yes, we know there are Bar rules and Rules of Judicial Conduct, but who really reads those?

For example, Florida Judicial Cannon 5 states:

A. Extrajudicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;

(2) undermine the judge's independence, integrity, or impartiality;

(3) demean the judicial office;

(4) interfere with the proper performance of judicial duties;

(5) lead to frequent disqualification of the judge; or

(6) appear to a reasonable person to be coercive.

B. Avocational Activities. A judge is encouraged to speak, write, lecture, teach and participate in other extrajudicial activities concerning non-legal subjects, subject to the requirements of this Code.

FL ST CJC Canon 5

Just to be clear- Canon 6(B) appears to indicate that while Judge should teach, they should not teach law - which, considering the state of the judiciary, is probably a good idea in principle. 

SURVIVOR POOL WINNER TONIGHT

CONGRATULATIONS TO LUCY LEW OUR 2016 JUSTICE BUILDING SURVIVOR POOL CHAMP. 

Well done Ms. Lew. Well done indeed. 
Prizes include the right to buy a $4 cup of coffee at Starbucks, the right to wait in line at the jails to see clients, the right to wait in Miami traffic, and other valuable rights, privileges and immunities for winning our Survior League. 

After sixteen nerve wracking weeks, it comes down to this: our two best players- Lucy Lew and Real Fake Former Judge (hereinafter RFFJ). 

In an ending so poetic that one might say Hollywood invented it, the prestigious Justice Building Blog Survivor Pool Championship will be decided in the billion-dollar home to the Dallas Cowpokes. 

Lew- a crafty player who survived an early scare to run the table has picked the Cowboys, who, it must be said, having nothing to play for tonight since they have locked up the number-one seed in the NFC. 

RFFJ has picked the visiting Lions. While the Lions cannot win the division until they play the Packers next week, they can secure a playoff spot with a win tonight. 

Earlier on Monday we sent both players an email alerting them to the championship implications of the game tonight. RFFJ replied and had this to say:

No surprise Lew picked the Cowboys. While she played moderately well, she boxed herself in and didn't leave herself with many options this weekend. While she thought she was saving a strong team for the end, she didn't plan on the Cowboys playing second stringers and not having anything to play for. I could have picked any number of teams this weekend, but I decided to go with the Lions and she played right into my hands. Just for the record, to have a complete undefeated season, I will pick a team next week, so I can legitimately claim going 17-0. 

"All hail the new champ RFFJ!" 

See ya in the funny papers Rump.Thanks for running the show. 

THE BEST CHRISTMAS MOVIES

The best christmas movies of all time. By your obt Srvt, Horace Rumple, QC.

There is no question that It's A Wonderful Life is the best Christmas movie of all time. And while we are big Jimmy Stewart fans, for us it's Lionel Barrymore as the villain Mr. Potter that steals the show. We are a big fan of Mr. Barrymore's work and like nothing more than finding a Dr. Killare movie on TMC and watching him as the crusty old Dr. Gillespie.

Of course a Miracle on 34th Street is a strong contender for number two, but we have a different number two in mind.

Rounding up the top ten in our opinion are the Die Hard movies, one and two- both take place during Christmas eve and both are modern day classics.

There are several other movies that belong in the top ten, but we will leave that for the comments.

Our Number Two greatest Christmas movie of all time, is the 2003 classic Love Actually. Here's the thing about Love Actually. It is sappy. And people hate it. But many of those who hate it actually love it, they just won't admit it.

For those of us who unabashedly love Love Actually- and as this Washington Post article indicates- Hard Ball host Chris Matthews is the movie's #1 fan- the movie is a gem of writing and songs.

The movie follows a group of people in our London, as Christmas approaches. There is the sweet: young Sam- mourning the loss of his mother, is guided by His father Liam Neeson to getting his first kiss from his grade school crush.

The bitter sweet is the story line of a couple with children ( Harry and Karen) as Karen learns that the beautiful necklace her husband bought was not for her, but his sexy secretary Mia. Note that Harry is played by the remarkable Alan Rickman- who is the only actor to appear in two of our top ten picks (unless Jimmy Stewart was somehow a cameo terrorist in one of the Die Hards). Rickman gave the remarkable performance as the villain in the original Die Hard. Who can forget the chilling way he wrung every bit of evil out of asking John McClain "who...are ....you?"  Mr. Rickman passed away this year, and he left us too soon with too many wonderful roles just waiting for his extraordinary talents.

But our favorite story line is Jamie a writer (played by Collin Firth) and Aurelia, a Portuguese housekeeper who Jaime lets return to Portugal without confessing his love for her. Then, after realizing his mistake, he takes a crash course in Portuguese, and on Christmas Eve finds her working in a restaurant. As Chris Matthews points out- duplicating the balcony scene in Romeo and Juliet, Jaime (with half the town tagging along behind him) finds Aurelia in the balcony of a restaurant, and from the ground floor, proposes.
Pure romantic magic. 

Throw in a funny and well acted story line about the new PM Hugh Grant falling for one of his aides, and you have a wonderful HEA (happily ever after) Christmas/comedy/ love story.

After the incomparable It's A Wonderful Life, Love Actually is the best Christmas movie ever. 

HR

THIS IS WHAT IS MEANS TO BE AN AMERICAN

This is the true meaning of Christmas and this is a true story about real Americans. 

In Lancaster, PA, volunteers from the Church World Service, an international non-profit service that takes in Syrian refugees, go shopping and provide newly arrived refugee families with a home, food, furniture, clothing, toys for children, basic kitchen supplies, and then a job. 

In this NY Times story, volunteers shop at Walmart to supply a family with last minute necessities. Another volunteer drops off a full dinner for a family of refugees so that when they come to their new home, they will have a home cooked meal waiting. Pajamas and soccer balls sit on twin beds in childrens rooms covered with local sports teams blankets and sheets. A sign in Arabic says "welcome home". 

This is what is means to be an American. A country of immigrants who understand what it means to be a stranger in a strange land. For unless you are a native american, all of us are children of immigrants. 

This is what the meaning of Christmas is. To help a neighbor, a brother, a sister, people you don't know, united only by the belief we all share this small blue planet, we all breathe the same air, we all want peace and health and happiness for our family and opportunities for our children.  

For unto you is born this day in the city of David a Saviour, which is Christ the Lord.
Luke 2:11. 

Happy Christmas (which is the proper greeting in our England) 

and Happy Hannukah. 

RANK THE JUDGES (not as fun as you might think)

POST ON JUDGES UPDATED BELOW

BREAKING: JUDICIAL ROTATIONS, V2.4

Oscar Rodriguez-Fonts will take over Judge Brennan's division January 17, 2017. Judge Sayfie will handle the division until then. 
Can we all agree now to just tag Judge Rodriguez-Fonts with the "ORF" moniker? 

Newly elevated Judge Del-Pino will take over for Judge Trawick, who heads to family court. Nobody knows what federal judicial selections will be like with POTUS 45 (maybe he'll just Tweet them), but Mr. Trump couldn't start off better if he considered Judge Trawick for the federal bench, who would be a fantastic selection. 

In some county court news, Judge Altfield, who we tag as the County Court Judge who should be in Circuit Court, will be heading to DV.  (In golf there is the dubious title of "best player to never win a major." It denotes a player who has talent and is expected to win. Much in that same vein, Judge Altfield clearly is circuit court material. We hope he will soon start applying.) 

Long time REGJB County Court Judge Louise Krieger-Martin takes a break and heads to South Dade. We are sorry to see Judge Krieger-Martin leave. She was clearly the dean of Criminal County Court trial judges. A real pro and she will be missed. Lets hope her southern sojourn will be a short one. 

Yes, we are being uncharacteristically soft on our robed readers. Rumpole is NOT a grinch, although many prosecutors think otherwise. 

RANK THE JUDGES
Holidays are the times for ranking. Best news story 2016. Best restaurants 2016. Best books, best movies, best songs, best whatevers...

So let's rank the best judges who sat at the REGJB, with this small caveat: 
The Judge must currently be retired or passed away. NO CURRENT JUDGES.  So...Stan Blake-eligible. Any judge currently serving-NOT eligible.  Think of it like the hall of fame. You need to be retired five years to be eligible. 

We will start. Hands down, the best judge to ever serve in the REGJB and the judge against whom all are measured was The Honorable Ed Cowart. Smart. Brillant. Fair. A southern gentleman who was always the best legal mind in the room. Perfect judicial temperament.  Judge Cowart is #1 in our book. 

Post your comments. Rank your judges, and we will post the most thoughtful on the blog. 

No one is in trial this week, right? If so, let us know. 

Here are some of the comments/rankings. We add that only one commentator mentioned the late and great Judge Rob Pinero. He deserves mention in any discussion. He was smart, fair, worked hard and very efficiently and always had a low case load and managed it without sacrificing justice or fairness. 

Rufus T. Firefly said...

In no particular order the best are:
Joe Farina
Stan Blake
Marshall Ader
Mark Leban
Arthur Rothenberg
Jeff Rosinek
Jerry Klein
Arthur Snyder
Fred Moreno
Arthur McGinnis

 Anonymous said...

Jack Tanksley
Dominic Koo
Joe Durant
Mort Perry
Arthur Winton
Meek Robinette
Jack Martin Coe
Nancy Pollock
Adele Segall Faske
Gerald Kogan
Bob Deehl
Fred Nesbitt
C. P. Rubiera
Joan Stember (later Lenard)
Mario Goderich
Ed Swanko
Bob Kaye
Harvey Baxter
Phil Knight
Gerry Klein
Murray Klein
Norman Gerstein
Joel Brown
Gerald Hubbart
Milton Starkman
May Cain
Skip Gross

Rumpole says- nice to see Judge Skip Gross and Gerry Klein, Mario Goderich, Gerry "Hawk" Hubbert  and C.P Rubiera mentioned.

WHAT MAKES A GOOD JUDGE PART II

In part one of our post, we posited that a good judge needs 15 years of legal experience, ten of which are spent in courtrooms as a PD or ASA. Once the judge has the experience, we move on to the issue of character. 

Character counts for the judiciary. It's easy to do the popular thing. It's much tougher to do the right thing.

Lawyers and the judiciary are viewed through by the public through a media and pop-culture lens of unrealistic results. Movies and TV shows portray the justice system as an over-worked bureaucracy where high-paid lawyers routinely get evidence suppressed and cases dismissed based on technicalities like finding that a defendant's middle name in a document in a murder case was spelled wrong. In the movies, an angry and over-worked judge releases the killer who then goes on a mass murder spree while a defense attorney laughs in his or her new Tesla (which are really really great cars btw).

The reality is that since the mid-1980s there has been a relentless assault on the bill of rights. Exception after exception allows unconstitutional searches to survive, while prosecutors intentionally hide exculpatory evidence, only to see convictions upheld on the harmless error analysis.

Millions of poor people are processed through a conveyor-belt justice system, where they are forced to plea to small misdemeanor and felonies, and then over-whelmed with excessive court costs, fees, license suspensions, and the inability to get a job or live in public housing because they pled no contest to smoking marijuana. The media ignores the daily tragedies of criminal courts. When was the last time an exonerated defendant released from death row was on the front page of the Herald, or led the news coverage on Fox? But the nation hung transfixed about the trials and acquittals of George Zimmerman and Casey Anthony, cases that are not the norm in criminal court.

There was an old time circuit judge  who used to mentor new judges by telling them they could rule however they wanted in 98% of the cases that came before them, but in the other 2% of the cases, they had to satisfy the public, the police and the prosecutors with favorable rulings and a stiff sentence.

The character of a judge counts in whether a judge will be average, good or great. We ask judges to have the courage of their legal knowledge, and to stand up to the mob and the public outcry for vengeance. In Florida, as in many state courts, the costs for a judge ruling with their conscience may be a challenger in the next election. This in turn means that a judge may spend over $100,000.00 of their own money. All because they did what was right. 

Sorry, but we have no sympathy for this scenario. Everyone who wears a black robe to work wanted the job. They applied for it. They filled out hundred page questionnaires, endured sophomoric, solipsistic   questioning by panels of lawyers, while they begged acquaintances for letters of recommendation. Or, in the alternative, they spent months on a campaign, mortgaging their home, spending money to get the job. 

Don't complain when the job you want requires you to make a hard decision. Good judges do it. Great judges do it exceptionally well. And bad judges follow the advice of that long since passed judge who told young judges to just follow the mob on the tough cases. 

Which judge sitting in the REGJB today could issue a judgement of acquittal in case where a white police officer is accused of killing a black teen in a bad shoot (assuming of course the facts deserved the ruling)? 

If a judge couldn't make that call- and perhaps sacrifice their career in the name of justice, then they don't belong on the bench. Any judge that could live with an innocent person serving life in prison because the public wanted a conviction shouldn't be on the bench. 

Tough words about a tough job. 
We often poke gentle fun at our robe wearing colleagues. But don't think for one moment we do not know how tough their job is. We do. They can have it. 

Low pay. 
Long hours. 
Hard decisions. 
Not for us.* 

See you in court. 


* We don't mind the long hours or the tough decisions. But the low pay? Switching to $50 bottles of wine with dinner? Have you ever sipped the 2012 Ulysses Cab with foie gras seared just right at the Four Seasons in San Fran (tell Seema or Andreas  at the door you read the blog and want table #4- it's the best in the restaurant, the views are grand)?   Foregoing our monthly excursion to Per Se in Manhattan?  Switch from NetJets to (lord forbid) commercial air travel? Have you gone mad?

WHAT MAKES A GOOD JUDGE PART I

NFL Survivor Week 15: Lucy Lew flies with the Falcons, while RFFJ rolls with the Texans. Lurvey yet to pick.... thinks the Chiefs are his path to victory. Once again, we have the real chance for a winner today. If not, at the end of week 16, we will declare all remaining survivors winners!

WHAT MAKES A GOOD JUDGE?

The New Year brings new judges to our humble REGJB. Some are new to criminal (Fine and Hanzman), and some are just new (Oscar Rodriguez Fonts.) 

What will make people- lawyers, court personnel, litigants- call some of them good and maybe one of them great?

The opening lines to Steve Martin's great biography "Born Standing Up" are these: "I did stand-up comedy for eighteen years. Ten of those years were spent learning, four years were spent refining, and four years were spent in wild success."

It's a  recipe for success. It mirrors the formula discussed in the fantastic book "Outliers, The Story of Success" in which Malcom Gladwell posits the "10,000 hour rule" in which he states the key to outstanding success is practicing ten thousand hours. Talent is not enough according to Gladwell. The time must be put in. 

From 1960 to 1964, an obscure English band played live over 1,200 times in small venues in Hamburg, Germany. After more than 10,000 hours of practice, the Beatles exploded on the music scene of the world. There are plenty of musical geniuses. Every music school has them. But Lennon had 10,000 hours of practice in composing, playing, discarding, and composing songs again. 

There have always been serious students fascinated by specialized subjects. In the 1960s and 70's thousands of young men and women dreamed of computers. But in 1968 Bill Gates-aged 13-gained unique exposure to a mainframe computer than allowed him more than 10,000 hours of programming time. 

Steve Martin's parents moved several times when he was child. At age 13 they ended up two miles from a brand new attraction in California- Disney Land. Martin landed a job selling magic tricks- performing before small crowds dozens of times a day. It started him on a routine of performing for tens of thousands of hours through his teens and 20's. When practice and genius met opportunity when he turned 30, Martin was ready. 

Vince Lombardi said "Luck is the residue of design."

So knowing what we know about practice and preparation, what makes a good judge? 

Under our thesis, experience in handling cases and clients must be paramount. Sorry to those 29 and 30 year olds who want to be a judge after fives years in the Bar. But you haven't put in your ten thousand hours. 

But what kind of experience? 

Being a PD or ASA would be the natural answer. In no other area of the law does a young lawyer get exposed to the multitude of problems, clients, issues, and solutions that a young PD or ASA experiences. The client who wants to get on the stand and lie. The cop who grabs the ASA in the hallway just before testifying on a multi-defendant case and asks her help in identifying the defendants because he can't remember which one is which. 

Figure 4 hours a day on average in court. 20 hours a week. 80 hours a month. about 900 hours a year, taking into account vacations and off weeks. Ten years of courtroom work brings a PD or ASA to about 9000 hours of experience. Now add another 3 hours a day of dealing with witnesses, depos, interviews, which adds another 6000 hours over ten years and you have a lawyer with 15,000 hours of litigation experience. Now after ten years, the lawyer goes into the private sector for 5 years, doing civil or family or a mix of both. Add another 3500-5000 hours of experience over those years, and with a lawyer with 15 years of experience you have someone approaching 20,000 hours of practice and work. 

Assuming a lawyer graduates law school at 25, by age 40 you have someone who has the experience and grounding to be a good judge. 

But it doesn't stop there. Because in our world, experience is not enough. Character counts as well. 

In the classic movie The Hustler, George C Scott - who plays Minnesota Fats handler- tells Paul Newman who plays Fast Eddie Felson- after Fats has busted Felson although Felson was the better pool player- that Fats won because he had character. He wasn't a loser. 

Coming next. What Makes A Good Judge Part II. 

GOV TAPS DEL PINO

Governor Scott selected County Court Judge Vicky Del Pino to assume the Circuit Court seat vacated by Judge Stanford Blake. 

Heading to Circuit Court in the New Year 

Meanwhile, second only to the plethora of inauguration events, The Judge Blake retirement tour continues through the holidays, with pretty much every legal group known issuing awards and holding parties in his honor's honor. Next up: the South Sweetwater Probate lawyers society will be throwing a shin-ding to honor the departing judge. 

Things are winding down. Not too many trials for the next two weeks. So should we do our annual best books or do a top 20 movie countdown?  Or just go dark like some other (federal) blogs? 

Money never sleeps and neither does Rumpole. 

See you in court. 

A SEASON OF CHANGES

JUDGE BRENNAN RESIGNS!

BREAKING: Judicial rotations:
Here is what has been released- first, the resignation of Brennan has thrown the judiciary a curve ball. For the moment, Judge Sayfie who has been covering the division will stay in there, although reports of Judge Mindy Glazer being on the bench with Sayfie have been filtering in. 

Judge Fine from dependency replaces judge Bloch, who exits stage left into the ether. Presumably Bloch will apply for Brennan's seat, and you know what? His name should be sent to the governor. He didn't win, and he didn't run the best race and the lawsuits were a colossal error, but the electorate got the vote wrong because he is more qualified by a mile than his successor. Which is the same thing we could say about Presidents 44 and 45, but that's for another day. 

Judge Hanzman from civil switches with Judge Ruiz. Be nice to Judge Hanzman. He's wicked smart and was a legendary litigator and he will pick up criminal very quickly. 

Judge Trawick to family, but no one in family has drawn a short straw to come to the REGJB, so the timing of this is still not set. 

Judge Vicki Brennan, whose career has spanned being an Assistant State Attorney, Counsel to Governor Jeb Bush, and Circuit Court Judge, has resigned. 

We have this confirmed from two separate sources. 

Brennan suffered through a minor scandal this summer involving her actions in a personal matter in the Keys. 

There are second acts in America, and Judge Brennan will certainly find her footing and re-emerge, as either the superb lawyer she once was, or in some other form of public service. 

We are all human and we all make mistakes, and none of those things detract from our fundamental worth and value to ourselves, our family, and our community. Sometimes Judges and prosecutors lose sight of this. Only age and experience can allow someone to view an individual's actions through the lens of time. 

We thank Judge Brennan for her service and we wish her well, fully knowing she has many more years of success before her. 

It seems a bit silly in light of this post, but here are the survivor picks:

Lew and Lurvey go with the Vikes over Jax, while RFFJ picks the Falcons to beat the Rams. 

For the first time this year, we can say that we may have a winner in the survivor pool! Good luck all. 


See You In Court. 

THIS WAS ALL PREDICTED

BREAKING Tuesday, 9 am ish: Ralph, Judge Murphy's super-bailiff thwarts escape!

It was not just a normal calendar before Judge Dennis Murphy on the second floor of the REGJB Tuesday morning. A probation violation caused a defendant not in custody to attempt to flee after the Judge ordered him into custody. 
Eyewitness reports that first out the door was Ralph, the popular bailiff, who tracked and down assisted in apprehending the recalcitrant defendant who, we hear, ran UP the down escalator. Ralph was seen shrewdly covering the down escalator, cutting off an avenue of escape. Brains over brawn. 

All in a days work for a great bailiff. 

Important escape tip: preparation matters. A successful escape involves many moving parts, not the least of which is heading for an exit to get out of the building. All running upstairs gets you, is eventually the roof. 



Richard Rorty, a philosopher and author, died in 2007. 

In 1998 Rorty wrote a book entitled "Achieving Our Country."

At the turn of the century, Rorty was concerned about the marginalization of the American working class, a condition he predicted would not last. Here is an excerpt from his book, which is remarkable in its vision of what the future would bring. 

"Something will crack...
The non-suburban electorate will decide that the system has failed and start looking for a strongman to vote for- someone willing to assure them that, once he is elected, the smug bureaucrats, tricky lawyers, over paid bond salesmen, and postmodernist professors will no longer be calling the shots."

Here is where Rorty really nails it:
"One thing that is very likely to happen is that the gains made in the past forty years by black and brown Americans, and by homosexuals will be wiped out. Jocular contempt for women will come back into fashion...All the resentment which badly educated Americans feel about having their manners dictated to them by college graduates will find an outlet."

And in 2016, America found its "outlet". 

Indeed. 

See You In Court.  

NFL WEEK 13

SURVIVOR POOL
Down goes De La O- an ill-timed pick of the Big Easy Saints  sent the respected jurist and rumoured favourite down in week 13. But well played Judge De La O. Well played indeed. 

Luvey and Lew marched on with a Packers win, whilst the annoying Real Fake Former Judge flew with the Arizona Cardinals to a win and survival. On we go.

SO, YOU WANT TO BE A JUDGE - Florida Supreme Court - 3rd DCA - Circuit Court .....

THE CAPTAIN REPORTS:

SO, YOU WANT TO BE A FLORIDA SUPREME COURT JUSTICE .....?

As a result of the retirement of Justice James Perry, who has announced his retirement effective December 30, 2016, the Florida Supreme Court’s JNC interviewed 11 candidates and nominated three to Governor Rick Scott. The judge must reside within the jurisdiction of the 5^th DCA.

The three finalists are:

Wendy Berger, a 5th District Court of Appeal judge

C. Alan Lawson, chief judge of the 5th District Court of Appeal in Daytona Beach

Daniel J. Gerber, of the Orlando office of the law firm Rumberger, Kirk and Caldwell

All three candidates were heavily promoted by The Federalist Society. Promises from many of those interviewed went something like this: 'I promise to maintain my conservative principles; to not legislate from the bench; to bring to the bench a core set of conservative principles; I admire Justice Canady for his judicial philosophy and for his frequent dissenting opinions; I am an originalist', etc etc etc. All of the finalists were praised by Federalist Society's Florida Co-chair Jason Gonzalez as being "imminently qualified and hav[ing] demonstrated a textualist judicial philosophy similar to that of the late Justice Antonin Scalia".

SO, YOU WANT TO BE A 3^RD DCA JUDGE ..... ?

Also in the news, with the retirement of Judge Frank Shepherd from the 3^rd DCA, the JNC accepted applications from four sitting judges and seven lawyers who have applied for the open spot on Florida's Third District Court of Appeal.

Those that have applied include:

Miami-Dade Circuit Judges Norma Lindsey, Robert Luck and Bronwyn Miller and Broward Circuit Judge Carlos Rodriguez.

The other applicants are:

• Assistant U.S. attorney Jonathan Colan
• Michael Dono, Hamilton, Miller & Birthisel, Miami
• Miami Deputy City Attorney John Greco
• Susan Scrivani Lerner, public defender, Miami
• Former Miami-Dade County & Circuit Court Judge Fleur Lobree, now with the Miami-Dade State Attorney's Office
• William McCaughan, K&L Gates, Miami
• Assistant Miami-Dade County attorney Oren Rosenthal


The Governor also will be naming a new Miami-Dade Circuit Judge before the end of December to replace Judge Stan Blake.  Finalists include: Jason E. Dimitris; Ayana N. Harris; Spencer Jet Multack; Victoria del Pino; Lourdes Simon; and Andrea Ricker Wolfson.

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

THIRD CLIPS GLICK WITHOUT REMORSE

Prosecutors cannot argue lack of remorse of  at sentencing because Judges are specifically prohibited from considering lack of remorse when passing sentence.

Knowing this, the prosecution in Lawton v. State, 3D15-1520 improperly argued the defendant's lack of remorse when seeking the court to impose a severe sentence:

THE STATE: [I]n light of the fact that Mr. Lawton has, still to this day, not expressed any remorse for what he's done or any responsibility for something that he has now been adjudicated guilty by 6 of his peers and in light of the victim's wishes, the State is requesting that your Honor sentence him to a minimum of five years in state prison . . . . 

(We will leave for another day the Dade's Sao's complete abandonment of their role and duty to seek justice and recommend a fair sentence. Victim's by the very nature of the fact they have been victimized are not in a position to request a just sentence. They usually seek vengeance, which is understandable, but not legal nor even biblical. But lest there be any doibt the Dade SAO has completely abandoned their role in seeking justice at sentencing, one need only re-read the words of the ASA who- at the urging of the victim, sought a five year sentence.). 

In Lawton, the 3rd found that Judge Glick did consider that argument and the defendant's lack of remorse in sentencing Lawton. The 3rd vacated the sentence and remanded for a new sentencing procedure before a different judge. Even the best judges have a bad day, and Judge Glick erred.

But what bothers us is that prosecutors continually argue lack of remorse at sentencing when the law is clear and they should know better. The court in Lawton wrote:
It is well established that “[w]hile a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt.” Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004).

It's apparently "well established" with everyone except the Dade SAO. What concerns us is that the new year brings new judges. And what with afternoon nail and spa appointments, tea and tee times, not to mention the odd origami class before dinner, judges just don't have the time to read case law. And new judges, like veals in a pen, are led through a maze by aggressive and over-confident prosecutors who continually push that "right up until today Judge he continues to show no remorse" argument that must still exist in some State Attorney Handbook under the heading "So Now You've Won a Trial. What's Next?"

So lets all make a new years resolution to keep Lawton and Ritter v. State handy, so that when prosecutors pull out the "no remorse" argument, the defense has a response. Well, at least some you need to make that resolution. We don't, for reasons that should be obvious.

See You In Court.

CUSHIONS

We received this email the other day:

"Rumpole. Love the blog. Breaking news. Courtrooms are being fitted with cushions for the bench seats! This is big!! Trump effect?"

These next two weeks are pretty much the last two trial weeks of the year. After that- no one wants to work. 

As we head into the end of the year, we were recently in federal court and walked past the wall on the Akins building listing all the District Court Judges for the SDFLA.

Some judges served a long time. Others only a year or two, their names and memory lost to all but a few in the legal community; and some not known at all. It got us to thinking: which short-term judges at the REGJB are worth remembering? We'll define a short-term judge as someone who served less than a full term. We've run across a few in our time who came- left at 2 pm for a few months or years and then just left. 

Meanwhile Jeff Sessions as attorney general? Buckle up, it's gonna be a rough ride. 

See you in court. 

HISTORY WILL ABSOLVE ME

Survivor Pool- everyone survives. Lucy Lew cruised with the Giants, while the 3 gentlemen all went with the Bills. The four move on to week 13. 

"History will absolve me" is what fidel castro told the court that sentenced him to fifteen years for a failed coup attempt prior to his successful overthrow of the Cuban government. Pardoned and exiled, castro returned and executed a successful coup against the Batista regime. 

History has not absolved castro. History will condemn him. 

The history of Cuba from 1959 to the present is the history of all communist dictatorships- a failed economy; a people without rights of expression and movement and ownership of private property. 

The philosopher Ayn Rand wrote that there can be no rights without property rights, and history and castro and Cuba have been a microcosm of her proof. 

Our community is populated by Cuban expatriots whose only crimes was the ownership of property, the running of a business, and education. When castro imposed his dictatorship on Cuba, the doctors, lawyers, engineers, farm owners, and merchants were the first to flee torture, imprisonment, theft of their homes and businesses, and murder. Those who could not own the rights to their abilities would not stay in a society founded on altruist-collectivism. 

"From each according to his ability to each according to his need"  cannot succeed when those with ability refuse to serve those with need. 

Cuba today is an economic and ecological disaster. The farms cannot produce because the land hasn't been taken care of. Knowledgeable farmers who had their land confiscated "for the people" left. With farm production falling, there was little to sell and GDP fell. With his country teetering on economic collapse, castro moved Cuba into the Soviet sphere, where the Soviets propped up the Cuban economy for the next forty years until the Soviet Union collapsed. With no sponsor for his communist state, Cuba fell into economic collapse in the 1990's; its people starving and its economy anemic. 

Today Cuba is a county frozen in time. Cars and households and infrastructure remain frozen in 1959. The country cannot produce money to do more than barely feed its citizens. Technology is almost unheard of. There is nothing that Cuba produces that is new or enviable. Even its tobacco farms have fallen into fallow. 

History has spoken. The Cuban revolution and communist dictatorship have failed. Hundreds of thousands of good people had their property stolen. There are no free elections, and in 2016 the country teeters without basic technology on the brink of economic collapse. 

There are not many things that we can accurately predict, but this is a one hundred percent given: in days, weeks, months or even a few more years, Cuba's totalitarian
communism and fidel castro will be consigned to the ash-heap of history. 

Soviet Premiere Kruschev once famously told a group of western diplomats "we will bury you."

Cuba is burying fidel. 
And the world will soon bury cuban totalitarian communism. 
Guaranteed.  

CASTRO MUERTO

THE CAPTAIN REPORTS:

BREAKING NEWS ......

FIDEL CASTRO IS DEAD AT AGE 90*

Cuban President Raul Castro has announced the death of his brother Fidel Castro on Cuban state media.  The New York Times hits the Internet immediately with a story they have been writing and updating for years: "Mr. Castro brought the Cold War to the Western Hemisphere, bedeviled 11 American presidents and briefly pushed the world to the brink of nuclear war" that can be read here.


*Now who's going to promote the Adidas tracksuit?!

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

OH THE HUMANITY

No Thanksgiving is complete without the best Thanksgiving promotion ever. Enjoy.

GOBBLE, GOBBLE .......

THE CAPTAIN REPORTS:

HAPPY THANKSGIVING  ..... GENIE IN A BOTTLE EDITION

The holiday season has arrived once again in South Florida.  How do we know this?  Well, for one, the damn roads are more crowded than ever.  You can't find a parking space at a mall.  And the line at Joe's is getting longer and longer.  And Horace has gone into hibernation; likely at his winter home outside of Truckee, in the Sierra Nevadas.

One thing that never changes in the "Magic City".  The WEATHER.  While folks are already shoveling snow in the Midwest and Northeast, we topped out at 82 degrees today with a low of 68 tonight.  Sucks to live up North, doesn't it.

So, today's assignment for our loyal readers, is to post a Comment that tells us what your three wishes are, (assuming of course you manage to run into Christina Aguilera on a beach somewhere while looking for that Genie in a Bottle).  And be creative.  We don't want to hear "peace on earth" kind of wishes or "we wish that Bill and Hillary" would both go to jail wishes.  Get creative, be funny.

Enjoy your Thanksgiving FOOTBALL Holiday Weekend.  We'll be watching, in no particular order: Michigan v. Ohio State; Alabama v. Auburn; Florida v. FSU; and the Dolphins v. 49ers this weekend.

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

HOW TO GET ELECTED JUDGE: 101 ......

THE CAPTAIN REPORTS:

REALLY NORTH OF THE BORDER ......

VOTE FOR ME - MY OPPONENT REPRESENTS MURDERERS, RAPISTS, CHILD MOLESTERS AND OTHER CRIMINALS

Vote for Dana Santino for County Court Judge said the campaign flyer. Her opponent, Greg Lerman, is a criminal defense attorney who has spent his career "representing murderers, rapists, child molesters and other criminals".

Sound somewhat familiar? It happened in Miami-Dade County in 1996, and that campaign tactic worked here too. Yes, Dana Santino defeated her opponent Greg Lerman by just under 15,000 votes in Palm Beach County on November 8^th  by a count of 248,765 - 233,949.

Criminal defense attorney and FACDL member Joseph Bell wrote a post on the FACDL Blog concerning the Santino v. Lerman campaign entitled: "Fundamental rights are at stake in Palm Beach County judicial race" that can be found here.

The Santino campaign’s response to the criticism went something like this: "Mr. Lerman is not a public defender and chooses to represent individuals who may have committed heinous crimes." In addition, Santino’s campaign also used social media to attack her opponent, using a Facebook page to criticize Lerman because he "chose to represent [a] serial killer."

Palm Beach County’s Judicial Campaign Practices Commission, a judicial ethics advisory panel, weighed in on Santino’s campaign stating that: "Santino’s statement is inflammatory and ignores that such legal work is based on bedrock constitutional rights". "It implies that representing such persons is dishonorable and antithetical to the public good, when, in fact, the representation of persons accused of crimes — even heinous crimes — is an essential component of our criminal-justice system". The Commission went on to state that "the email is rife with the innuendo that Mr. Lerman would favor even the worst of the worst from the bench (whereas, by implication, Ms. Santino would not),". "The Facebook post suggests the same."

Santino’s campaign consultant, Richard Giorgio, was more blunt, responding to the Commission’s findings by stating that: "Mr. Lerman is desperate. His supporter filed this last minute complaint in an attempt to generate some press for his failing campaign." County Court Judge-Elect Santino also weighed in, stating: "I appreciate the opinion of the commission; however, as the commission itself discloses in their letter, it is just that – their opinion,"; (the commission has no power to force Santino to do anything or to punish her. It’s opinions are purely advisory). The Palm Beach Post covered the story here.

So, the next time you have the pleasure of appearing in County Court before the soon to be Honorable Judge Santino, be forewarned of the value she places in your role as an advocate for the defendant in your case.

BONUS: Who can name the winner and loser of the 1996 Miami-Dade County judicial race where this same practice of calling out your opponent for representing "criminals" took place?

NORTH OF THE BORDER .......

The State Attorney’s Office, AKA The Office of Michael Satz, has no home. As a result of sick prosecutors and staff refusing to remain at the Broward County Courthouse 6^th floor offices, the Chief Judge is looking to move the employees to either the County Law Library or across the street into offices at the 110 Tower. No less than 134 SAO employees have signed up to move due to illnesses they have experienced. The Sun Sentinel covers the story here.

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

SURVIVOR WEEK 11 DEFAULT EDITION AND HAMILTON REVIEWS

We all lead busy lives and we try and squeeze in some exercise and some entertainment but along the way we sometimes get tripped up. Thus the sad saga of ace Survivor Pool player Clayton Kaeiser who last week sent us a pick of a team he had already picked. As the emails flew back and forth at a frantic pace and the opportunities for picks slipped away, it was only when all was lost did Mr. Kaeiser realize he was communicating with US and not one of the other pools he is in. Thus, having first made a pick of a team he had picked before, and then not having fixed it in time, he defaulted out. 

Meanwhile Dan Lurvey, secure in his Sunday pick of the Ravens hadn't realized they had played on Thursday night. But he fixed his pick in time and grabbed the Giants for a MNF win and he proudly marches on.  Jason Ireland also fell last week, hoping for a Pack bounceback that fizzled. 
So now there are four!

Here are the picks this week: 

RFFB: Cowpokes; De Lao Over- NE Cheaters; Lucy Lew - Fins; Lurvey-Raiders.

In other news, the Cast Of Hamilton (great musical if you can get the ducats) ended the show with a message to VP elect Pence who was in the audience about inclusion and fairness in our society, which caused our busy Pres-elect to take to twitter to complain. Was the cast of Hamilton out of line? We say no. 
Also making twitter was the resounding standing ovation for the lines in the musical celebrating immigrants. Having seen the show, its always an applause getter, but apparently last night it was a show stopper. 

Yes, among our many varied talents, we also have our finger on the pulse of Broadway. Enjoy your Sunday. 

KEYS CHIEF ASA MANNY MADRUGA HAS PASSED AWAY

Tragedy struck the legal community  as Monroe County Chief ASA Manny Madruga took his life this week. Here is the Keys article on the tragedy. 

Many of you know Manny as a top notch trial lawyer and State Attorney Cathy Vogel's right hand in running the Key's State Attorneys Office. 

Manny was a great prosecutor and that is how he would have wanted to be remembered. Being a prosecutor was all he cared to do, and tragically, when it became apparent that Dennis Ward, who used to be the State Attorney and was defeated by Vogel six years ago only to win the current election, was not going to keep Manny on as the chief assistant, Manny took his life. 

While Ward's actions were a cheap political shot well beneath the dignity of the office he will soon hold, he doesn't bear responsibility for this tragedy. 

Some things....the actions some people take...the feelings they have...they pain they are suffering, are unknowing and unknowable. And sometimes tragedies occur that cannot be explained. 

Such was the case this week in Key West. 

Services for Manny Madruga will be on the Friday after Thanksgiving in a church in Key West. 

See you in court. 

AN REGJB CABINET

As much of the world watches transfixed over the train-wreck and incompetence of a Donald J Trump led transition, we wondered how the cabinet would be filled out if we only had the denizens of the REGJB to fill the posts. 

Obviously Janet Reno as AG, since she was AG, so lets leave her out of it. 

We'll start it off.  Our appointment to the Supreme Court would be Ed Cowart, a gentleman, a scholar, and possessed of a razor sharp legal mind nestled in the old south genteelness of a different era. 

Our second choice would be the late Circuit Court judge Michael Salmon, who was scholarly and always wanted to be an appellate court judge. 

Lawyers, judges, past and present are all eligible. Have at it. 

See you in court.

RULE 3 HAIL MARY

When all hope is lost and the jury has returned a verdict of guilty and the 3rd DCA has said PCA, all that is left is a 3.850.

Thus was the scene this week when a familiar face was led into a courtroom on the second floor to have his 3.850 motion heard by Judge Milton Hirsch.

It must have been difficult for Judge Hirsch to sit and listen as one of his former colleagues from the defense bar and one of his former colleagues from the bench, one Phil Davis, sat in a red jumpsuit, looking haggard and gray and all but beaten by a system that once he tried to game.

His history is all too familiar to the regular denizens of the REGJB. Electoral victor over _______(name the opponent Davis beat for super duper REGJB BLOG extra credit), Davis took a seat on the circuit court bench in the REGJB and immediately began to exhibit bizarre courtroom behavior - berating prosecutors for filing informations, and hitting up lawyers in his chambers for loans. Eventually Davis became ensnared in the infamous Courtbroom scandal. His chambers was wired and he appeared headed for a downfall until (we can't make this stuff up) Davis was defended by one Alcee Hastings- himself an impeached federal judge before being  elected to congress (only in Miami does this crap happen, right?).

While his brethren from the bench all went down and went to prison- Judges Goodhart, Gelber, Sepe and Shenberg- Davis beat the rap. An astounding acquittal based in no large part by a spellbinding closing argument from Hastings who hadn't even sat through the entire trial.

Turned loose into the world, and unfortunately himself- Davis, who beat the feds couldn't beat his own demons and found himself in State court facing a serious charge of using a charity to defraud the government. Defended by, inter alia, Don Cohn, who himself was about to be elected to the county court bench, Davis turned down a plea offer of minimal jail time only to have Judge Butchko- she of late of the Dade Business Court- sentence him to twenty plus years or so.

We've written about Davis before, notably here.
And now it's down to this. A hail mary rule 3.850. Win big and go home or lose, and do not pass go, do not collect two hundred dollars, and be returned to a hellish fate in prison.

There's nothing pretty about the fall when it's this big.

See you in court.

COMPLEX BUSINESS KERFUFFLE

There is something in the civil court division that handles complex business cases. What could those be?  "Plaintiff sues defendant for failure to indemnify the debentured bonds issued on behalf of the party of the third part..."  Yawn...

In any event, in a decision that spilled on to the comments section of this blog for the past few posts, Judge Soto chose veteran Judges Betty Butchko and Will Thomas to fill two open spots in the complex division. Many of the comments opined that Judge Hanzman should have been selected. Judge Hanzman did indeed apply. A very successful litigator in private practice, Judge Hanzman joined the bench for all the right reasons and spent a considerable amount of time in what we consider to be THE toughest assignment for a circuit court judge: Dependency Court.

When Judge Hanzman was not selected for the complex business section, he asked to come to criminal court. His request was granted and we in the REGJB will be welcoming a premiere jurist and former top-notch litigator in 2017.

At some point during the comments, there were some misguided comments about Judge Hanzman's race, an issue that should not really occupy any important discussion. That being said, Judge Hanzman, who is caucasian, was thought to be African-American by some commentators. Eventually, Judge Hanzman had enough and posted this comment last week. His handling of the race issue was perfect- a humorous dismissal:

Michael Hanzman said...

This is Judge Hanzman. Please stop posting about business court. The Chief Judge picked two outstanding Judges who have been there longer than I have and who will do a great job. I practiced civil law my entire career and one of my goals in leaving and going on bench was to learn other areas and be exposed to different parts of our community. That is why I stayed in dependency for almost 5 years. And while I have enjoyed civil I never practiced or judged a criminal case and thought it would be an interesting new assignment. One of the benefits of our court system is the ability of Judges to be exposed to different areas of the law and this is an area I've never been exposed to. And because i have always aspired to be Federal Judge- and am considering applying- Judges who i admire and respect advised me that I should round out my experience by doing some criminal work. That is why I decided to transfer. And while i would have welcomed the opportunity to serve on our expanded business court the Chief Judge had many qualified applicants and made the choice she felt was best for the court. Her job is VERY difficult and often thankless and she does not deserve to be insulted for doing public service and working everyday to try and serve our system. If any bloggers feel they could do better join the court and contribute. Don't bitch from the sidelines. Finally, and as an aside- I'm not African American. Just a short white bald guy.

Friday, November 11, 2016 2:39:00 PM

  

We received some emails from some individuals purporting to be African-American who apparently want to invite Judge Hanzman to "join them". Now, first let us say that race is a sensitive subject. The African-American experience in this country, from slavery, to civil rights, to the current socioeconomic and racial issues that divide the country is no laughing matter. But in the spirit of this blog, we reprint some of the comments:

"Judge Hanzman, get yourself an ipod and download some Marvin Gaye, Donna Summer, Martha Reeves and the Vandellas, Jay Z, and Snoop Dog. Tune in, chill out, get your groove on, and there might be some hope for your bald-white-ass yet."

"Rumpole, if Hanzman will eat some collard greens, change his Sirius station to some soul, and read The Invisible Man by Ralph Ellison as well as some Maya Angelou, then we would welcome him as an honorary brother. "