SEYMOUR GELBER HAS PASSED AWAY

A Miami Legend has passed away. 

He was a kid from Brooklyn who worked in a bakery. He was drafted into the Army just before WWII and became a buck sergeant who never fired a shot in anger- a fact this kind and gentle and wise man was proud of. 
He came to Miami after the war and attended the U of M on the GI bill and soon after graduating law school went to work for legendary Miami State Attorney Richard Gerstein. It was at the State Attorneys Office that Gelber and a new hire named Janet Reno were tasked with helping create Florida's Juvenile Justice system. 
From the State Attorneys Office he became a Judge and devoted his career to juvenile justice. After leaving the bench he was mayor of Miami Beach. 

Seymour Gelber was so much more than a Judge or a Mayor or a Prosecutor. His total exceeded the sum of his parts. He was a wise and caring man and community leader who was self-effacing and led with a smile and a sense of humor. Miami is Miami because of men and women like Gelber. He gave more than he ever took. He was the embodiment of Theodore Roosevelt's quote that "Far and away the best prize that life has to offer is the chance to work hard at work worth doing." 

The Miami Herald obit is here. 

We rest in the shade of giant oaks that were planted as acorns. Seymour Gelber planted many acorns in his life and he became the giant oak that gives us all shade. 

MORE CHANGES

We neglected to report that among the mid-season judicial moves, we missed the return of Judge Pooler to our humble REGJB. There is nothing better than arguing a motion before the judge, and then getting a piece of candy from her chambers afterwards.

The REGJB used to be a warm and friendly place to work. Judges held cooking contests in their chambers with prosecutors, defense attorneys and staff vying to make the best cookies or lasagna. Now the building is more like the halls of Congress- two sides who barely get along and speak over each other. 

OFFICER ALEDDA ROUND TWO: 
Having nearly lost their entire case against Officer Aledda with an acquittal on one count and a jury hung 5-1 for acquittal on all counts, the Dade County State Attorneys office has made the "wise" and "legal" decision to re-try Officer Aledda. 
This is an outrage. The community has fairly well spoken on this and enough is enough. It is very difficult and trying to go through the criminal trial process, and doing so as a police officer-not to mention one with an infant at home- is too much a price that the prosecution is seeking Officer Aledda to pay. He made a split second decision that night - it turns out to be a wrong decision- but his  actions were not criminal- they were not close to being criminal. It is significant to note that the jury acquitted the officer of the culpable negligence count of shooting at the autistic man - which means they found the discharge of the weapon justifiable. 

This is not only a disappointing decision by State Attorney Katherine Fernandez-Rundle and her office, but a wrong one. 

BASEBALL OPENING DAY 2019

IT'S OPENING DAY!
For legions of die-hard fans who closed out the fall of last year stating "wait till next year!", next year is here. 

Just to hit the ball and touch 'em all –
a moment in the sun; It's gone and you can tell that one goodbye!
John Fogerty, Centerfield.
  
For at least ELEVEN  years we have run this post. Baseball is important to us.

The one constant through all the years, Ray, has been baseball. America has rolled by like an army of steamrollers. It has been erased like a blackboard, rebuilt and erased again. But baseball has marked the time. This field, this game: it's a part of our past, Ray. It reminds of us of all that once was good and it could be again. Ohhh... people will come Ray. People will most definitely come. Terrance Mann, Field Of Dreams.



Baseball follows no time. It has a rhythm of it’s own. It’s the only major sport without a time clock.  The strategy is to control the man. Control the match-up.

No matter how you play it, its 3 men up and three men down for nine innings.

It’s a game of statistics- do you bring in your right handed reliever to face the other teams big right handed hitter? The stats say yes. And yet…

it’s a game of hunches. When Tommy Lasorda called an injured Kirk Gibson off the bench in Game 1 of the 1988 World Series in the 9th inning, one on, two out, the Dodgers behind 4-3, and the future Hall of Fame Pitcher Dennis Eckersley on the mound , he did so on a hunch. Announcer Jack Buck called the home run, and was moved to exclaim “I don’t believe what I just saw.”

It’s a game of senses.

The glimpse of the green grass in Centerfield when you first walk into Yankee Stadium.
The smell of cut grass and fresh dirt.
The sting of a foul ball off a wood bat on a cold March morning.
The sound of the pop of the ball in the catcher's glove.

Little boys and girls  learn that when they hurt themselves in the game, to rub some dirt on it.
Is there any more valuable lesson in life?

The moments are magical, yet simple. It's why memories remain so clear in the rheumy eyes of old men who once played the game.

To take the wide turn past second, stretch a double into a triple, dive in head first, stand up, and dust yourself off.

To move to your own rhythm while you crouch with your glove off of  third base, (the hot corner) each hand on a knee, eyes wide as the ball comes off the bat. You scoop up the one hopper and make the throw to first.

Roberto Clemente in game 7 against the Orioles catching the ball in deep right field, whirling and firing a strike to third base- the best throw in the history of the game. 

Willie Mays stalking center field, gliding under a fly ball. 

Hammerin Hank Aaron hitting another one out.

Pudge Fisk hopping and jumping and waving that ball fair.

Mets/ Red Sox. Game six, 1986. Do we need to say anything more?

CUBS WIN...CUBS WIN  2017...miracles do happen and sometimes "wait until next year" comes true.

October 13, 1960. A fading fall light in Pittsburgh. Seventh game of the world series. Ralph Terry on the mound for the Yanks for the bottom of the ninth. The game impossibly tied at 9-9. Bill Mazeroski, the Bucs light-hitting second baseman  takes the first pitch for a ball. The second pitch sails over a dejected Yogi Berra in left field as the city explodes and Maz dances around the bases in the only seventh game-9th inning walk off home run.

Young Dwight Gooden throwing heat, and then snapping off a curve (uncle Charlie, or Lord Charles) for a called third strike. Close your eyes and you can almost see Bob Gibson, standing on the mound in 1968, glaring, before throwing a hard high one inside.

Reggie hitting one out with his first swing on a cold October evening against the Dodgers in the 77 Series. And then another one with his first swing. And then, impossibly, another one with his first swing. Three swings, three home runs. In the World Series. 

Cleon Jones waiting under a fly ball hovering in an ice-blue New York October sky. The ball lands softly into his glove, and Jones falls to one knee for a minute as a man, and stands up as an imortal member of the 1969 Miralce Mets- the fly ball being the last out in the world series that the improbable Mets won. 

Any three guys turning a 4-6-3  double play, but Tinkers to Evans to Chance being the best.

There comes a time in a boy’s life when he stands there at home plate. It's hardball in an organized league. His first real “at bat.” The pitcher is a year older, and maybe thirty pounds heavier. The first pitch comes in so fast he can barely see it. It’s hard to believe anyone can throw that hard. And yet the boy stands there, rubbing some dirt on his hands as he re-grips his bat, kicks his cleats into the ground, and waves his bat. Hopefully menacingly. Just like he's seen it done on TV.

The pitch comes, and suddenly it's in slow motion. He can see the seams on the ball rotating. He can almost smell the ball as he swings. The bat glides across his hips and the plate. It all seems so simple, as a line drive bounces safely in the alley. He turns at first, saunters back, takes off his batting helmet and glove, and puts his foot on the bag, feeling it crunch beneath his foot. He may not know it, but his father is crying in the stands, and he has given himself a memory for life.

Young boys grow up and then grow old. They do their life's work and the game begins to fade away.
But every now and then, right around this time of year, they rummage through their closet and pull out a glove. Or maybe they go to the sporting goods store and buy one for themselves and one for their son or daughter. Then they sit  with their new glove that first night, showing their kid how to oil it up and put a ball in the pocket. And maybe it’s a family tradition to fold that oiled glove over a ball in the pocket and put that glove under your pillow.

And you smell the oil, and the rawhide, and you dream.

Just to hit the ball.
And touch them all.
A moment in sun.
It’s gone and you can kiss that one goodbye.

This is our favoutire post. 

MOVIN ON UP

And the Oscar goes to....

Judges Tanya Brinkley and Michelle Alvarez- Barakat were elevated to Circuit Court by our new governor. 

We don't know much about either, but we did have occasion last year to handle a few bond hearings before Judge Brinkley and we left her courtroom impressed. 

Congrats to both Judges. 

Here's a fascinating thing about these appointments. They were covered by the San Francisco Chronicle. Yes, A newspaper three-thousand miles away on the other coast of our country covered the elevation of two Miami County Court Judges. 
Uhho David Ovalle, you guys have some major competition. 
Next up: Le Monde (which we read voraciously) covers weekend bond hearings. 

CONSTITUTIONAL CALENDAR 3/27

You know him, you love him, you cannot live without him...No- Not Mike Pence. 
But Judge Milt Hirsch and his Constitutional Calendar.  If you like the Constitutional Calendar, you'll love the Chicago Cubs Calendar. For example:  September 9, 1969-- the infamous "Black Cat Game."
On August 19, 1969, after  a half a century of futility, the Chicago Cubs were in first place with an eight game lead. By the time they arrived in New York in September for a two game series, the lead had dwindled to two and a half games. The Cubs lost the first game on September 8 and they badly needed to win the second game and get out of the Big Apple with a split. Both teams sent their aces to the mound- Fergie Jenkins for the Cubbies and Tom Seaver for the Metropolitans. In the fourth inning Glenn Beckert for the Cubs hit a double to center field. Billy Williams was at the plate and Ron Santos was on deck and the Cubs were in a good position to score a run to take the lead. Then a Black Cat sauntered out on the field and walked behind Santos in the on-deck circle. The cat then walked back and forth in front of the Cubs dugout and looked right at Cubs Manager Leo Durocher before running under the stands.  Santos went on to single in Beckert for their sole run of the game. Seaver pitched a complete game and was never in trouble again. In the bottom of the Black Cat inning Donn Clendenon hit a two run homer and the Mets never looked back - at either the Cubs that night, or the NL East, clinching the dvision two weeks later as September 1969 documented yet again another Chicago late-season swoon. 

That is our version of the Chicago Cubs calendar were it to exist- a documentation of a century plus of misery. 

Anyway, here is Judge Hirsch's latest Constitutional Calendar missive: 

            The Enforcement Acts of 1870 were intended to empower federal law enforcement and the federal courts to combat the activities of the Ku-Klux Klan and like-kind organizations.  They provided, in pertinent part, that:

[I]f two or more persons shall band or conspire together, or go in disguise upon the public highway ... with intent ... to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony.

            On April 13, 1873, a group of white supremacists slaughtered more than 100 unarmed blacks in front of the Colfax, Louisiana, courthouse.  This atrocity garnered national attention.  President Grant labeled it a “butchery” that “in bloodthirstiness and barbarity is hardly surpassed by any acts of savage warfare.”

            Indictments were returned and the matter prosecuted in U.S. district court.  In due course the matter found its way to the Supreme Court.  See United States v. Cruikshank, 92 U.S. 542 (March 27, 1876).

            The Court’s treatment of the Enforcement Acts, and of the relevant constitutional provisions, opened the door to a century of racism, segregation, and abuse.  The rights of which the defendants were alleged to have deprived their victims – rights such as freedom of speech and public assembly – were guaranteed by the Constitution as against the federal government, not against state governments or private individuals.  Besides, the defendants were private-sector actors; the Fourteenth Amendment could do no more than empower the federal government to protect against the abuse of rights by the state.

            The order of the court below arresting the judgment upon the verdict of conviction was affirmed, and the case remanded with instructions to discharge the defendants.

AVENATTI INDICTED - TWICE!

Lawyer Michael Avenatti was indicted twice today as Rumpole made his way back from Wisconsin, through Atlanta, and finally Miami (Thank you Delta for the ATL-Miami- upgrade. We needed it.).

The Feds in California indicted Avenatti for bank and wire fraud for converting client funds to pay his personal expenses.
The Feds in New York, in a what is shaping up to be a wild case, indicted Avenatti for attempting to extort twenty million dollars from Nike in exchange for Avenatti not revealing a high-school and college basketball-shoe scandal (whatever that is).

Wanna know a secret?
The unindicted co-conspirator in the NY/Nike case is none other that California celebrity lawyer Mark Geragos who has represented Collin Kapernick, Michael Jackson, and Wynona Ryder among others. We count Mark Geragos as a friend (not of Rumpole but of hsgqtiep shabvxcok who we are in real life and no, that's not a word scramble so relax), but we have not had a chance to speak with him.

Proof that truth is stranger than fiction.
There is a lesson to be learned here with Avenatti and it comes from Ralph Waldo Emerson and it is  this- when you strike at the President your house must be clean as a whistle.  Within the last year Avenatti has been arrested for domestic violence, had accounts frozen for unpaid back taxes, and been evicted from the building where his law office was for unpaid rent. You cannot be in financial distress and fight POTUS. Because as we all remember, Ralph Waldo Emerson said "When you strike at the king, you must kill him." 



WELCOME BACK
Very quietly and under the Rumpole radar, Judge Miguel De La O, a blog friend and adequate fantasy football participant, has wrangled a three player trade that ended up with him leaving civil and returning to criminal court where he has been missed.  The judge traded summary judgement arguments and fights over interrogatories for suppression hearings and JOA motions, which any well heeled and intelligent jurist would do. Welcome back judge. 
and

ANOTHER BAD IMMIGRANT STORY

This is another story about bad immigrants. The ones who come from what our president so eloquently called "shit-hole countries."  The immigrants at the centre of this story are African- so they are people of color, which as we all know from attending MAGA rallies, immediately makes them a problem. They have kids they could not support- problem two. They are seeking to remain in the United States under one of those lefty-liberal immigration loopholes called "asylum" which means they are lying about facing threats to their physical safety in their home country of Nigeria. 

And because they are black immigrants from Africa, they are shifty, lazy, stupid, and do not have the get-up and go of the good Americans who go to MAGA rallies with guns in their trucks and strapped to their bodies with large Texas state flag belt-buckles holding up their jeans and an Archie comic book stuffed in their back pocket for reading while waiting for the rally to begin.  

When Tanitoluwa Adewumi (age 8) and his mother, father, and older brother arrived in the United States they were homeless. They have been in a homeless shelter in NYC for over a year, taking up needed space that good and g-d fearing hardworking taxpaying Americans needed. The two boys went to NYC public schools, taking up space that tax paying New Yorkers funded.  It was an outrage. 

But here's funny thing that NY Times columnist Nicholas Kristof noted: "Talent is universal, even if opportunity is not." And so it came to pass that eight year old Tanitoluwa Adewumi began studying chess in the homeless shelter and recently he won the NY State Chess Championship for his age group, competing against children educated at elite private schools. 

Young Tanitoluwa Adewumi lugged his big trophy back to his homeless shelter which Nicolas Kristoff chronicled in his NY Times column and then a real American story unfolded. 

Readers raised over $200,000.00 for the family in a go-fund-me account. Other readers offered apartments and homes for the family. Immigration lawyers fell over themselves to represent the family for free. 

And here's how this story of these greedy, shiftless, worthless, immigrant leeches  from a shit-hole country ends:  The family rejected offers of luxury homes, and accepted a modest two bed-room apartment near Tanitoluwa Adewumi's public school in which an anonymous reader paid the first year's rent in full. The father stated that the family would not accept the $200,000.00 but would instead set up a charitable foundation to help other African immigrants. 

Mr.  Adewumi supports his family by driving an Uber and working to sell real estate. A reader of Mr. Kristof's column offered to buy Mr. Adewumi a car so he could keep more of his Uber earnings. 

Here is the second of Nicholas Kritof's columns about the young immigrant chess champion from Africa. 
https://www.nytimes.com/column/nicholas-kristof

A wall couldn't keep this family out. And two hundred thousand dollars couldn't make this homeless family forfeit their ideals of charity towards all and malice towards none (yes we stole that line from Lincoln). 

You won't see people like the Adewumi family at a Trump/MAGA rally. No sireee. These people from a shit-hole African country don't have MAGA ideals. And perhaps the publicity will get the President's ICE agency to swing into action and boot these grifters out of our great country. 

Everybody knows Chess is a liberal-Commie game anyway.  Give us good old-fashioned checkers which we are sure is played at MAGA rallies. 

Imagine being so un-American as to turn down $200,000.00 for your homeless family.  Trump will get these people. He can't have Africans in our country doing things like that. It would wreck everything our president stands for.  

WITNESS ELIMINATION

Julio Morris is on trial for murder. The case has lasted a few weeks already before Judge Al Milian. The trial was scheduled to begin a few months ago when a key witness turned up dead. On Thursday Morris was formally charged with ordering the witness killed. Two other people are in custody on the murder of the witness.  We note that "elimination of a witness" is a statutory aggravating factor for the death penalty. The trial for Morris continues. David Peckins  and Stuart Adelstein for the defense. 

**POOF**
For his next trick, David Copperfield who once made the Statute of Liberty disappear, will now make the REGJB disappear. This cannot happen soon enough. 

A RUMPOLE RANT

Before we rant, new security changes at the main jail. You get screened when you walk in. There are lockers in the lobby.  Once again we note that TGK is the only jail that screens you twice. 

COURT REPORTERS - A RANT
Court reporters work very hard. They do an excellent job and like many others in the criminal justice system, they are under-paid. So ok- we are on your side. 
BUT
What is the deal with the sanctity and inviolability of the all important "notice of deposition"? 
Try getting a court reporter to show up without a notice of deposition. 
You can get a brain surgeon to the operating room easier. You can get the President of the United States to your home easier. You can get front row seats for Hamilton on Broadway easier. 

We do not normally deal with such pedestrian matters. We have "people" who handle the paper work. But it came to pass the other day that we needed a court reporter for a deposition on a last minute basis and we called several - many of whom we have known for decades. 
"Can you appear XXXX at 3PM to take a deposition?"
"Can you send us a notice of deposition?"
"No. I'm out. Staff members at the office are sick and others are on vacation. Here's the case number. Here's the defendant's name. Here's the witnesses name. For chrissakes here's our credit card. Just show up and take a twenty minute depo..."
"But you don't have a notice of deposition?"
'NO NO WE DO NOT HAVE A NOTICE OF DEPOSITION. THE FAA GROUNDED THE 737 FLEET WITH LESS PAPERWORK. CAN YOU JUST SEND SOMEONE WITH A MACHINE TO RECORD AND TRANSCRIBE THE QUESTIONS AND ANSWERS?"
"Well, without a notice of deposition..."

"…Mr. President there is a meteor heading to earth which will destroy all life. But we have calculated that if we can get three court reporters to show up at NASA in Florida, we can deflect the asteroid and save life on earth."

"Well, get it done. Save the planet."

"Umm, the problem is they all are requiring a notice of deposition before they appear and there isn't sufficient time..."

You can get the US Attorneys Office to offer Pre-trial diversion easier than getting a court reporter to show up without a notice of depo.  It's easier to get a judge to pick up their bar tab. Or get a sticker for lot 26. Or for the Dolphins to find a decent starting QB. Or to get a table at Joes on Saturday night. 

Why does it have to be this difficult? 

Thanks, now we feel better.

NEXT CASE KATHY RUNDLE

The Officer Aledda case is in limbo. Five jurors rejected the prosecution's theory of the case, illustrating just how hard it is to ask citizens to second guess officers who make split second decisions in the line of duty. That two prosecutors with unimpeachable integrity- Don Horn and Reid Ruben- believed Officer Aledda acted criminally is good enough for us. Their view was not supported by the jury, but we accept their decision as the product of thoughtful investigation. 

Now it is time to move on Ms. Rundle because officers who improperly pull and fire their weapon is NOT what is destroying this community. For every questionable police shooting, there are 100-500 cases (or more) where police officers demonstrably lied and we have yet to see ONE prosecution by the Dade County State Attorneys Office against a police officer for perjury during a deposition or court testimony. And it is the dishonesty of police officers that destroys the integrity of the criminal justice system and our community, not the one questionable shooting case. 

Every week the  Dade Public Defenders office sends emails rightfully congratulating their lawyers on a victory at trial. And some of those wins are because of weak evidence, unsure witnesses and the like. But there are enough cases discussed where the body or police vehicle camera and audio completely contradict what the officers have written in police reports and given depositions under oath about that shows we have a decades old epidemic that your office turns a blind eye too. How many times have prosecutors lost a case because the defense demonstrated that the officer(s) lied? And how many of those cases has your office followed up on and conducted an investigation for perjury? We cannot think of any. 

Defense attorneys often will tell clients that prosecutors do not lie because no case is worth their career. But we cannot say the same thing for police officers. We see the booking photos with our clients beaten bloody and read the arrest forms where the officers charge battery on a police officer and they have nary a scratch. We read the reports of drug investigations and then we get the police radio transmissions that show the officers were not where they say they were at the time- but that doesn't happen much anymore because now those same lying officers just use their phones instead of official radio communications. 

The danger and damage to our community is not the rare and indiscriminate police shooting- although those get the headlines. The danger to our system of justice and to our community is the epidemic of officers who lie and perjur themselves with no fear of being caught and prosecuted. The worst that ever happens in the case where officers are caught lying is the case is dismissed. 

Where is the Dade County State Attorneys Office when a law enforcement officer is caught lying? Why aren't prosecutors like Don Horn and Reid Ruben and legions of other dedicated prosecutors assigned to cleaning up the real scourage of our community? 

Miami is watching and waiting and the silence is deafening. 
Should you or a representaive of your office care to respond in writing, it will be posted without edit or comment. The blog is yours to explain what is going on. 

H. Roark, Esq. Blog proprietor.

STATE V OFFICER ALEDDA

UPDATE IV NOT GUILTY ON ONE COUNT...HUNG ON THREE OTHER COUNTS...more to come.

UPDATE III: FRIDAY MORNING-  The jury deliberated Thursday night for a few hours, which we view as a positive sign for the defense. The state has not yet asked for additonal rebuttal this morning, but you never know.  The legal community is buzzing with the decision to keep ASA Reid Ruben on the bench. 
Rumpole says verdict by 1pm. Antyhing past that you are looking a a jury that rhymes with "sung".  The herald's intrepid crime reporter will be tweeting all the action during deliberations 
@davidovalle305. Some possible tweets:
"jury arrives...three have coffee -three have tea. People view that as a bad sign"; "jurror shows up wearing MAGA hat. Prosecutors frowning." 
and things of that nature. 


UPDATE II: Kolsky finished the defense closing and then Don Horn rose to give the prosecution's final closing. With all due respect to Mr. Horn but keeping Reid Ruben out of closing is like keeping Lebron James on the bench for the last quarter of game 7. It's a mistake to leave your best player out of it. A tactical error and we shall see how this plays out. 
No doubt we are headed for a Friday jury verdict unless the jury wants to work tonight, and if they do that would be a very positive sign for the defense in our opinion and we are more knowledgeable than most. 

UPDATE: Perhaps showing the rust, ASA Don Horn closed the state's first closing argument by asking the jury to find the defendant guilty of "attempted murder". Uhho. Aledda is charged with attempted manslaughter. Defense objected and Horn apologized. 
Next up: Doug Hartman for the defense in closing. 

There was a bit of legal maneuvering this afternoon in courtroom 4-1 in the trial of officer Aledda charged with attempted manslaughter in the firing of his weapon at an autistic young man. 
After both sides rested Wednesday, the prosecution after a good night's rest decided to call a rebuttal witness. What were they rebutting after they rested? The negative press coverage. 

That being done, it was Chief ASA Don Horn, dusting off his trial suit, for the state on the first closing argument. You can follow all the details on @Davidovalle305 's twitter feed. 

The weakness of the prosecution's case is evident in this: Horn told the jury that Officer Aledda wasn't a bad man, he just did a bad thing on the day of the shooting.  The jury's sympathies will be with the officer on this one we think. 

After Horn concludes, the chatter is  Jay Kolsky, an old pro who is a former prosecutor and PD will close for the defense. Kolsky is trying the case with frequent police lawyer  Doug Hartman. 

Then perhaps Reid Ruben, who we have opined in this pages previously is as good as it gets for the SAO, will get rebuttal and then the jury will be charged. Once again, very experienced lawyers have disregarded Rumpole's #1 rule for jury trials: AVOID FRIDAY VERDICTS. 

Even so, the courthouse rumor is that the officer is ahead on the judges' scorecards and the state needs a knockout punch in closing.

Stay tuned. Bulletins as proceedings warrant.  

JUSTICE FOR NAPHTALI

Naphtali Wacks was a criminal defense attorney who practiced in the REGJB. He was what we would call a Justice Building Irregular. He was there often. He was sui generis. He was a kind and gentle man who worked hard for his clients and he was killed in a tragic car crash in 2017 by a federal felon who was driving more than 100 miles per hour. 

The man who killed Naphtali pled guilty and was sentenced to 14 years in prison. 
Herald scribe David Ovalle's article is here. It does not mention the judge who sentenced Naphtali's killer. 

Naptali was a good guy. He never said a cross word about anyone. He was kind and gentle and marched to his own drummer. We used to see him having coffee with Sy Gaer in the mornings.  He is missed. 

REVENGE OF THE JEDI

Do prosecutors lie, cheat, steal, and game the system to win? 
Do they authorize searches and have cops tap phones without warrants?
Do they withhold exculpatory evidence and use manufactured evidence to win cases? 

Almost every new client we meet with asks us those questions. 
We tend to dismiss them with a statement about how no case is worth a prosecutor's career. We note that some prosecutors play it close to the line, but most do not cross it. We recall the conviction against then Alaskan Senator Ted Stevens where DOJ lawyers were caught withholding exculpatory evidence, but we then state that the case was an outlier. 

Maybe we are wrong. It has happened (rarely) before. 

With this news that Miami Criminal Defense Attorney extraordinaire and Federal Blogger David O Markus is litigating this case  as reported in the Miami Herald in which the allegations are that two Assistant United States Attorneys made a deal with a defendant who had also signed a joint defense agreement and was taking part in strategy sessions with the co-defendants and then being debriefed by the feds on defense strategy. 

The allegations are, to quote DOM "Jaw-dropping" and he is right. 

“Numerous jaw-dropping cover-ups and misrepresentations that were made to this court during that hearing [before trial] are just coming to light, and necessitate new remedies,” the defendants’ appellate attorney, David O. Markus, wrote in an August 2018 motion, which was among the documents just unsealed.

Read more here: https://www.miamiherald.com/news/local/article227259704.html#storylink=cpy

Contrary to previous assertions that Leon gave them no evidence, federal prosecutors H. Ron Davidson and Elijah Leavitt admitted in documents that they had obtained handwritten notes from Leon during the period when he was secretly invading the defense camp. Leon had given the notes to an IRS agent during a debriefing in February 2016 when he began his cooperation.

To the defendants, Leon had double-crossed them after he had joined them in a Joint Defense Agreement, an agreement where all four defendants extended the attorney-client relationship among them to share privileged information. But the other three defendants didn’t learn that Leon had broken ranks with them until his plea deal was publicly disclosed in April 2016. Until then, he had been a mole for the prosecution, the three defendants claim. 

Without speaking for Mr. Markus in this matter, in other forums at other times, he and other prominent criminal defense attorneys have noted that even when prosecutors are caught breaking the law, they are rarely punished. At most the defendants are afforded relief, and life goes on. However when a criminal defense attorney is accused of misconduct, investigations are opened, Bar proceedings are commenced, and the attorneys career is damaged if not ruined. 

Yet prosecutors who withhold evidence or otherwise do not play by the rules are sometimes demoted, rarely lose their jobs, are given new cases, and turned loose against other defendants. 

This is what is called a double-standard. And it is wrong. 

Read more here: https://www.miamiherald.com/news/local/article227259704.html#storylink=cpy

SDRAWKCAB

We are getting it backwards. "WE" meaning the criminal defense community as we continue to criticize the sentence handed to Paul Manafort. 

The internet and the opinion pages are alive with examples of harsh sentences handed out to the indigent clients of public defenders. "How could my client get life in prison in California for stealing a pair of pants while Manafort gets 47 months?" writes former Public Defender Rachel Marshall Sunday in an OpEd piece here in the Washington Post. 

The question isn't why Manafort got 47 months. The question and conversation we need to be having is why a poor man with two priors decades old was sentenced to prison for life for stealing a pair of pants in a scheme to obtain money to buy a car seat for his new born son? 

Judge Ellis, who sentenced Manafort was quoted over the weekend asking if anyone criticizing the sentence has ever spent a week in prison, or even a day?  That is the conversation we need to be having. 

Prison has a destructive effect on the individual and the soul. 
Think for a moment the destructive effect on you-Ms. Reader- and your family, if you were incarcerated for six months. Would your bills be paid? Would you lose your house, your car, your credit rating? How would it affect your family? Assume an average life span of seventy five years. An eight year sentence takes ten percent of that precious time away.   If you're 70 and statistically will not live until 80, would you celebrate a five year sentence? Does anybody truly think spending your remaining years behind bars, away from family and decent health care, is a lenient sentence? Have you ever woken up in the middle of the night sick? Take a Tylenol or a cough medicine or go to the ER. Good luck getting care within ten hours if you wake up at 2AM ill in prison.  You sit and suffer with your fate in the hands of people who resent your presence and enjoy seeing you suffer. 

And what of the deterrent effect?  How many middle-aged white men who are lobbyists in DC sat around Saturday night and plotted to commit crimes and evade taxes because they see what happened to Manafort as a slap on the wrist and are willing to risk what he is going through? 

Slap on the wrist? You go to a detention facility and be confined to a wheel chair and spend endless hours pondering what another human being is going to sentence you to. "You can beat the rap, but not the ride." Manafort did neither. 

The conversation we need to be having as criminal defense attorneys is the disastrous affect prison has on people. That a year in prison affects a person's life for the next five years and five years in prison creates obstacles that most people will never overcome. 

The conversation we should be having is why we have a system that allows prosecutors to threaten people with decades of time for crimes that do not physically hurt anyone. Tax evasion is bad. What Manafort did does not affect your blogger or you in the least. If Manafort had never been caught, life would have gone on unaffected for all of us. 

We have it "SDRAWKCAB"  which is "Backwards" spelled Backwards. 

We are missing an opportunity and shame on us. 

Coming Monday: Revenge of the Jedi and Mr. Markus. 

BAD MOON RISING

This is how it starts. 
A high profile sentencing. 
A perceived unfairness and hysterical commentary that a rich-white man got a break from a liberal-activist judge (never mind Judge T.S. Ellis  was appointed by Ronald Wilson Reagan) and then the politicians take over. 
"It's an outrage!...Judges cannot be trusted!...."
And the cry for minimum mandatory sentences will be taken up. 

Nobody runs for office and wins on the platform of having reasonable sentencing laws. 

Maximum sentences for any crime becomes the cry. And the public, indigent, demands action. 

Until someone is arrested and convicted and they are sitting in our office. 

"We don't understand Rumpole. Our (husband, father, brother, sister, mother) led an exemplary life for fifty years, Then they ran into money trouble and committed this crime. No one was hurt. The money was paid back. They are 70 years old. They have health troubles. They have lost their license. Why must the judge impose a twelve year minimum mandatory sentence?" 

Rumpole: "Under the Paul Manafort sentencing reform act of 2020, a Judge must impose a minimum of twelve years prison on all people convicted of white collar fraud claims if they have no prior record, have a college degree, used a computer for their crimes, and are considered 'a person of privilege' because the sentencing act clearly states people of privilege should receive an additional punishment for abusing their privilege so as to restore the public's trust in the criminal justice system. I'm sorry, there is nothing anyone can do."

Mark our words- despite the horrific unfairness of the sentencing guidelines, things are about to get worse, not better, because of this stupid case. How many of us would give almost anything to have a Judge of courage, wisdom and integrity like Judge Ellis sitting in judgement on our client's white collar fraud sentencing? 

But he, and the rest of the judiciary are about to lose their discretion in this area. 

A bad moon is rising. 

SHAMPOO. RINSE. REPEAT

A Rumpolian trip to a detention center is a rare event, what with the oratorical skills your blogger possess during bond hearings, and the infrequent but successful and "scythe-like" use of habeas corpus writs to bring recalcitrant robe-wearers into line.  
Practice-tip: Upon securing the release for a client in the face of prosecutorial opposition, begun every future hearing with a gentle remainder that the client is present although the prosecution assured the judge at the bond hearing of the dire consequences should she be released. 

A few-weeks ago we found ourselves at the eponymously named "Turner-Guilford-Knight" facility to visit with a potential new client whose calls for help had landed on our desk. 
To enter TGK we went through the standard security screening and then approached the desk with our client's information. The desk is about fifteen feet from the security screening apparatus.  

To the credit of the corrections' officers, our request was handled politely and professionally and within a few moments we were invited in to see our potential client. 

At which point, five minutes after first being screened, we had to clear a second security screening machine. Off again came the belt, watch, shoes, pen and keys out of pocket. An inconvenient dance we had just done with the prior screening machine a few yards away. 

Query- Why the second screening?  Entry into DCJ, Metro West, even FDC requires one simple screening. But at TGK there are two screenings within moments of each other. 

We are all for security. But this is unnecessary. It is a waste of valuable Rumpolian time as well as the time of our brother and sister criminal defense attorneys. It's inconvenient, and most of all it offends our sense of logic. One key to life is moving through it with as little waste of time and effort as possible, especially during work hours. 

So now is the time for FACDL to dust off the cob-webs, finish tallying the dues for 2019, order some grilled scallops as an appetizer for the upcoming awards banquet, and ASK CORRECTIONS WHY TWO SCREENINGS ARE NEEDED AT TGK AND TGK ONLY? 

Coming next: Another long-awaited and well-written and even better received  constitutional calendar whose author is bursting to have it shared with the world. 

INVESTITURES

It's that time of the year when our newest judges spend an hour luxuriating in their victory. Some are fun, some are boring. But it's polite to attend and wish the robed reader a bon voyage on their new career. 

Upcoming this week on Thursday March 7,2019 Judge Lizzett Martinez and on Friday March 8, 2019 Judge Betsy Alvarez-Zane. 

As we referenced in our post on Saturday, today, Monday March 4, marks the anniversary of the inauguration of our greatest President: Abraham Lincoln. 

Lincoln's first inaugural address pales upon his many other speeches and is outshone by his second inaugural. His first inaugural is a man contemplating the loss of his country. He beseeches the southern states to remain in the Union, assuring them he does not seek to end slavery, and will not give sanctuary to run-away slaves. Lincoln had so much more greatness in him then in this timid and tepid paean to the status quo. 

Tough times in the future- events more difficult than any president before or since had to handle-  would show that the man met his times. 

But Lincoln was our greatest wordsmith. And even in timidity and fear of losing the Union, his brilliance came through with an ending line that will last the ages:

In your hands, my dissatisfied fellow-countrymen, and not in mine, is the momentous issue of civil war. The Government will not assail you. You can have no conflict without being yourselves the aggressors. You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to "preserve, protect, and defend it."

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

The better angels of our nature. 

If poetry moves you. If brilliance inspires you.
Then Lincoln the man, the writer, the poet, the president, must be studied and never forgotten.  

THE WAR ON CANCER

This is a history lesson for the legions of millennial blog readers who, when asked about the Nixon presidency, postulate that it occurred sometime just before or after Abe Lincoln was president.*
And digressing for a moment about our best President, Monday March 4 is the anniversary of Lincoln's first inauguration in 1861, and we are certain we can all expect a monograph from the estimable Judge Milton Hirsch on the subject. 

Back to the war on cancer. In the NY Times today, John Dean, counselor for President Nixon writes  about his testimony before the House Judiciary Committee that brought down President Nixon. Dean writes about the similarities between his situation and Michael Cohen's and what Cohen can expect as the years go by. 

Dean famously brought down Nixon when he testified that he had told Nixon that there was a cancer growing on the presidency.  Like Cohen producing the check Trump wrote as president to reimburse 
him for payments to a woman to remain silent about a sleazy assignation, Dean's testimony was backed up by the tape of the conversation which we include for your listening edification. 




But that was not the final straw. The final straw for Nixon came on August 7, 1974  when he was visited by a coterie of Republican leaders - Senator Barry Goldwater, (R-Ariz), Senator Minority Leader Hugh Scott (R-PA) and House Minority leader John Rhodes (R-Ariz) - who told the embattled President  that he had lost support of his party and the country. 

It was the integrity of those men and their placing country over politics that arguably saved our nation and in a Rumpolian sense won the war on cancer. 

Where do we find these men and women today? Senator McCain had the right stuff, but he has passed on. We though Senator Lindsey Graham had the right stuff, but he has become a whimpering sycophant to the power of the presidency. 

You know who has it? You know who needs to step forward and lead? None other than the junior Senator from Utah, Mitt Romney. 
Romney is underrated as a man and politician. He was roundly mocked for stating in a debate with President Obama that Russia was presented our greatest threat on the international front. Romney was right; just ask the Clintons. 
Romney blasted candidate Trump as a liar and a charlatan and he was right again. He has the right stuff and the time is now for him to lead. 

Dean worked for a brilliant politician who was a flawed man who saw enemies and conspiracies everywhere. 
Cohen worked for a flawed man who has no brilliance who believes in nothing other than acquiring and holding power and will promote false conspiracies ("the media is the enemy of the people") to serve his own purposes. 

Nixon opened relations with China and successfully defused a potential third Israeli-Arab war during his Watergate crisis. 
Trump cozied up to a murderous dictator and pandered to Russia and China while alienating our closest allies in England,  France, and Germany.

Our system worked in 1974 because we had politicians of courage and integrity. 
We, and the world are watching to see if our system of government which we champion as the best, can work again. 

The whole world is watching our shame. 

* There was a 107 years between Lincoln's presidency and Nixon's presidency.

SIGNS OF THE APOCALYPSE

Either the current state of Lot 26 OR the picture of the first atomic bomb explosion that caused Robert Oppenheimer such grief.

Lot 26, that bastion of peace and parking spaces is CLOSED as of Friday for repairs and software updates. Until then the lawyers who have that coveted parking pass, and police officers who park where they wish,  will mingle with hoi polio and park with the public across the street(YIKES)!

This is not good.
Mondays will be a disaster. Uber/Lyft anyone?  

'NOW I HAVE BECOME DEATH. THE DESTROYER OF WORLDS."

Robert Oppenheimer, the scientist chiefly responsible for the successful explosion of the first atomic bomb, quoting the sacred  Hindu text Bhagavad-Gita upon seeing his creation successfully tested.