WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, AND THE POPE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Friday, February 28, 2020

MENTALLY ILL? OFF TO PRISON YOU GO!!!

A judge is supposed to bring a wealth of experience to the courtroom. Tempering sentences with wisdom, considering mercy and whether an individual has the ability to reform, while imposing a just sentence. The proceeding should be conducted with patience and dignity, giving the defendant and their counsel the time to present all mitigating circumstances. 

Some judges are guided by a lifetime of experience. Some are influenced by their religion ; Jesus said "let he who has not sinned cast the first stone." Hopefully the advocacy of the lawyers assist the judge, as does their individualized assessment of the defendant. 

Those are some of the factors that apply to a sentencing. 

Except for Judge Nick Nazaretian of the 13th Judicial Circuit. For him, a calculator totaling the highest sentence is all he needs. This is the article detailing a shocking list of judicial abuses and general thugishness from a Florida Judge who during sentencing sees fit to speculate on a defendant's weight, the memory of their dead mother, and labels defendants "sneaky-sneaks" (we checked the law books, but this must be an exceptionally sophisticated legal term, because we cannot find it in a decision anywhere. Maybe it comes from Roman law.), and "tv-watchers". 

In the case of Mia Black, on probation and then appearing for a violation before Judge NN, the probation officer and Ms. Black's husband both told the judge that Black's issue stemmed from her not being able to afford refills of her psychiatric medication, which lead to an episode where she was hospitalized.  The probation officer told the Judge that Ms. Black needed long term psychiatric hospitalization.  As Ms. Black's husband, a retired military veteran spoke, the judge cut him off, questioned him, and then said "what else do you want to tell me?" before sending Ms. Black to prison for 24 months. 

Yes, if you're mentally ill and can't get medicine, Judge NN believes that in all his wisdom that justice tempered with compassion means off you go to prison. 

We do not know what kind of future such an intemperate person has in public service, but there is probably a spot on a Fox News show for Judge NN. 

Justice in his courts is as much an illusion as the phrase Arbeit Macht Frei (work sets you free) which hung over the gates of Auschwitz was. 

Thursday, February 27, 2020

Dayana Nogareda Has Passed Away

Dear FACDL-Miami members,

Damaris Del Valle sent the following for our membership regarding FACDL-Miami member Dayana Nogareda:

It is with great sadness that I share the news that our colleague and friend, Dayana Nogareda, passed away early this morning at the age of 32. Dayana was diagnosed with brain cancer almost two years ago. While many experts said she did not have more than nine months to live, Dayana—being ever the fighter—survived for 20 months until her battle with cancer ended this morning. Dayana was surrounded by her family, her boyfriend, and friends who loved her dearly.

Those of you that knew Dayana know that she loved animals (especially pigs) and fighting for justice. She immigrated to America from Cuba as a young child. The combination of her work ethic and natural intelligence allowed her to take advantage of everything America had to offer. After graduating from law school, Dayana became an Assistant Public Defender who worked tirelessly for her clients. She was an amazing advocate, a phenomenal friend, and a beloved daughter and sister. She will be greatly missed but never forgotten.

As information about her service becomes available, I will be sure to share it with the listserv.

Damaris Del Valle

We did not know this young woman, but her untimely death serves as a reminder of the fragility of life. None of us know the amount of time granted to us on this earth. But we are reminded of the words of a lawyer who passed away recently- Philip Carlton - who was deeply religious and often said "Do not be afraid of death. Be afraid of not living a meaningful life."  

By all accounts Dayana Nogareda lived a meaningful life. 

Mason Kerns wrote:

Good Afternoon,

Thank you all for your support at this difficult time. I write to inform everyone that:

Dayana's viewing will be this Friday, February 28th, at 6:00 p.m., at the Caballero Rivero Little Havana funeral home, 3344 Southwest 8th Street, Miami, Florida 33135. The ending time is TBD.

and

A ceremony and Dayana's burial will be the next day, Saturday, February 29th, at 1:15 p.m., at Our Lady of Mercy Ascension Chapel, 11411 Northwest 25th Street, Doral, Florida 33172.

Please do not send flowers. Dayana wanted any money that would be used for flowers to instead be donated to charity, along with the unused portion of her Go Fund Me medical fund. I will send out a link tonight or tomorrow with details.

Best,

-Mason



Tuesday, February 25, 2020

THE PROBLEM WITH CONVICTING HARVEY WEINSTEIN

There is a celebration occurring today with the conviction of Harvey Weinstein. Victims who courageously came forward are being rightfully congratulated on their courage in testifying about difficult, personal, and horrific experiences they suffered when attacked. 

But two wrongs do not make a right. The increasing use of what Florida calls Williams Rule Evidence, what the feds call 404(b) evidence and what NY calls Molineux Evidence (see People v. Molineux, 168 NY 264 ( NY 1901) ) is creating prosecution by innuendo. And that portends dangerous times ahead for criminal defense practitioners as prosecutors become more emboldened by prosecution through uncharged bad acts.

If the victims' evidence and testimony did not stand on its own, then Weinstein should have been acquitted. This statement of course will induce purple- faced #metoo outrage. We will be accused of not understanding the special nature of sexual assault; that victims do not act in the ways other victims of other less personal crimes act. We understand. We will be lectured that it is very common for victims of sexual assault to not report a crime, or even maintain contact with their assailant. We understand that and we think such expert testimony on these issues is relevant so that the special nature of sexual assault victimization is understood. 

What we do not agree with is the general proposition that someone should be convicted because he is being charged with a bad crime, and he may have done this before. This leads to wrongful convictions. Maybe not in Weinstein's case, or Bill Cosby's case, but it will occur, and what we are concerned about is not the individual case here, but the precedent this has set. What local judge faced with a non-celebrity, non-newsworthy sexual assault case in which the prosecution seeks to admit evidence of uncharged acts will not think about the Weinstein and Cosby cases? 

These two cases are the thin edge of a large wedge. Soon there will be arguments that due to the sensitive and difficult nature of sexual assault cases, the standards for admitting evidence of other crimes should be lowered, otherwise "the victims will be victimized again."  This is coming. Just wait. 

Like it or not, the fundamental belief of the American criminal justice system is that it is better for 100 guilty men to go free then to have one innocent man convicted. 

In 2020 we can add this caveat- so long as one of the guilty  men going free is not Harvey Weinstein. 

Over/under on the sentence? 22 years. 

Monday, February 24, 2020

CHIEF JUDGES-ARE YOU PREPARED?

The Corona virus is now a world pandemic. It has taken hold in South Korea, Iran, and is still expanding in China. It has by all appearances mutated into more and less lethal forms. Like it or not, it is coming to the United States. 
We in South Florida are at one of the cross-roads of the world. We are a hub for South Americans and South American travel. 

Are we prepared? Does Trump respect the CIA and Nancy Pelosi and Chuck Schumer? 

Are the chief judges in Federal and State Court prepared to shut down the court system or modify it so that most of the public does not need to stream into the buildings, only to be shuttled into small, cramped, virus spreading incubators called elevators, jury rooms, and small courtrooms? 

We haven't seen any plans, so we will suggest some. 

Criminal Court: Suspend all misdemeanor trials. Starting NOW put additional resources to move the cases where people are incarcerated on misdemeanors. With all due respect to our misdemeanor judges, they are after all misdemeanors. Most people should not be in custody for petit theft or disorderly conduct or possession of an undersized Snook, so lets get them out. 

Second, prepare for Video Conferencing. Have judges create separate video calendars for defense attorneys who can call in from home or office to appear on cases. 
Have judges create sperate video conferencing calendars for unrepresented defendants so cases can be resolved or reset. No bench warrants will be issued.  

Civil Court: We care about civil court even less than we like it, which isn't saying much. But no civil case is worth spreading a virus. Judges have some type of  infamous proceeding called five minute calendars so motions to strike interrogatories and the like can be adjudicated. Face time it. Video conferencing. Let's drag our courts and judges technologically into the 2000's, even if its kicking and banging their gavels. Upgrade their 386 modems so they can stream video. 

Courts are one area where people do not need to congregate. Trials should be suspended- jury rooms are incubators of germs. Lincoln suspended the writ of habeas corpus during the civil war. Judge Soto can be Lincolesque and suspend speedy trial and civil time limits  until the virus threat passes. Or she can ask the Chief Judge of the Florida Supreme Court to put aside their research in overruling Gideon v. Wainwright and Roe v. Wade and sign the order suspending time limits. 

The point is that none of these things need to happen now. But we need to be prepared. Judge Soto and her 627 administrative judges need to create and  issue plans, disseminate them using their mimeograph machines to the legal community and the public, so that- and here's hoping it never happens- when the time comes, we are ready mentally and physically to practice law a different way for a few weeks. Spring is coming and the virus will not survive in warmer weather. 

Judges always sneer at lawyers who are not prepared. The door swings both ways. 
Get cooking your honors. 


Thursday, February 20, 2020

STONE COLD WRONG

We can make the case that the current "lock-em up and throw away the key" mentality originated in the late 1970's-1980's, when cities were besieged from a never ending miasma of violent crime fueled by a drug epidemic. A few notorious media cases of lenient sentences, the bestowing of nicknames like "let-em-go...[add name of judge here], stir, mix, rinse, repeat, and voila!- you have the  crime bill under President Clinton and the dismemberment of the traditional role of judges by the enactment of a slew of minimum mandatory prison sentences. 

Twenty-five plus years later you have a generation of poor, mostly black young men swallowed and forgotten  in the maw of the federal and state prison systems, and a philosophy of warehousing anyone unlucky enough to be caught in the criminal justice system. 

When did we accept the fact that it is appropriate to throw away the life of an individual because judges should "send a message" to others? As if potential criminals sit around daily reading the transcripts of sentencings and making decisions on whether or not to commit a crime based on what someone else was sentenced to. 

When did we accept that prison is easy? That losing your wealth to lawyers and fines and forfeitures, and losing your inability to support your family was an insignificant side-effect of a criminal conviction? When did the nation decide that eating slop, having your entire future in the hands of nasty and spiteful corrections officers, losing the inability to seek health care when you need it, losing the inability to make the basic decisions about when you can shower or use a bathroom was easy and that prison was no big deal and that inmates in prison are laughing at us? 

When did we decide that non-violent crimes requires incarceration beyond a year or two? 

Roger Stone was sentenced on Thursday to 40 months. Those who do not like what he stands for (mostly liberals who in the past have always been accused of being soft on crime) are outraged at how low the sentence is. 
We say go serve a day in prison and then tell us 40 months is a slap-on-the-wrist. 

It's time we bring back sanity to sentencing. There should be no prison for non-violent first offenders who do not victimize others (so do not send us Bernie Madoff as an example of a non-violent first offender- he victimized others).  Age should be a factor in sentencing. Juveniles are too young to fully appreciate their actions. People who are in the 60's or 70's represent almost a zero risk of recidivism. The ability to electronic monitor people has removed the need for incarcerating many of the people who are now sent to prison. 

Love him or hate him, the sentence for Roger Stone is stone cold wrong.  His sentence highlights all that is wrong with the federal sentencing system. 

Tuesday, February 18, 2020

GREATEST TRIAL JUDGE RETIRES AT 98

The greatest trial judge in the last 100 years, and perhaps ever, Judge Jack Weinstein of the EDNY, announced his retirement at age 98. 
The NY Times has the article here. 
He helped write the legal briefs in Brown v. Board of Ed. 
He was appointed to the bench by President Lyndon Johnson. 
He is known as an iconoclast, who rarely wears his robes in court, and comes down off the bench to sit across from the defendant during sentencing. 
He is an outspoken critic of the sentencing guidelines, and the mass incarceration philosophy of the last thirty years. 
He has written about the philosophical problems with criminalizing and sentencing individuals for possession of pornographic material that appeals to their individual prurient interests and obsessions over which they have little control. 
The NY Times article on that is here
“I don’t approve of child pornography, obviously,” [Judge Weinstein] said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children.
“We’re destroying lives unnecessarily,” he said. “At the most, they should be receiving treatment and supervision
He handled the Vietnam era Agent Orange class action lawsuit. 
He is the co-author of one of the signature treaties on evidence: Weinstein Korn and Miller on Evidence. 
He is one of the wisest men we have ever met, and he is singularly the greatest trial judge of this last 100 years. 
Judge Jack B. Weinstein, the best of the best.

Friday, February 14, 2020

PARDON US

The ABA had this to say:

The American Bar Association steadfastly supports judicial independence and the sound exercise of prosecutorial discretion. Public officials who personally attack judges or prosecutors can create a perception that the system is serving a political or other purpose rather than the fair administration of justice. It is incumbent upon public officials and members of the legal profession, whose sworn duty it is to uphold the law, to do everything in their power to preserve the integrity of the justice system.

Judy Perry Martinez
President, American Bar Association

Legally speaking, and we are going to use some technical legal terms, The ABA are idiots.

Lets review. The DOJ files a memo seeking to incarcerate a 68 year old political gadfly for a decade for lying to Congress, and all the ABA can do is criticize the president for speaking out against draconian sentences? 
The ABA are idiots. 

Sure the president is protecting a political crony. But this is an opportunity to talk about sanity in sentencing. Why do we have guidelines that recommend incarceration for non-violent offenders for decades?  Maybe it's time to have that discussion. 

We all know that there are hundreds of collateral consequences of a criminal conviction. You lose your wealth. You lose your ability to work in a meaningful way. And you lose your freedom. 

Does the DOJ really think that if Roger Stone got five years there are people who would say to themselves "I'm thinking of obstructing justice and if Roger Stone got ten years I wouldn't do it, but since he got only five, I'm gonna give it a whirl." ?

If all the ABA can do out of this mess is support the martyred prosecutors who were the ones trying to put Roger Stone in prison for a decade, then in our considered opinion...and you may have heard this before...
The ABA are idiots. They missed a chance for real change. 

Wednesday, February 12, 2020

EVERYTHING YOU NEED TO KNOW ABOUT SUSPENDED DLs BUT WERE AFRAID TO ASK

(yawn) 


On Thursday, February 27, 2020,  from Noon to 2PM, Miami-Dade Public Defender Carlos Martinez and FACDL-Miami will co-host a training session entitled Driver License Offenses. It will cover just about everything that can cause a driver license suspension and a driver license crime. 



This training is open to all Assistant Public Defenders, Assistant State Attorneys, Regional Counsel Attorneys, Private Attorneys and Judges.  [but no one else]. 



The training will feature a panel discussion by judges, lawyers, Advocate Program managers, DHSMV supervisors and court clerk staff led by private defense attorney Michael Catalano.  The panel will include Circuit Court Judge Richard Hersch, County Court Judge Jackie Woodward and private defense attorney Victor Vedmed

The training will provide an overview of how various Florida Driver License offenses can impact the status of someone’s driver’s license and how to remedy that impact. [Who wrote this sentence? There are crimes against the English language we cannot overlook even if the President orders us to go lightly on the offender.]

The panel will also discuss the specific effects of Driver License suspensions resulting from DWLS and DUI offenses. [Umm...hang on a sec...uhh.. You cannot drive!! Right? Did we guess the correct effect??] 

And they will explain the processes involved in restoring one’s Driver’s License to good standing. [It is very hard to stand a driver's license upright. The sides are very very thin].



The training will be held in COURTROOM 4-1 in the RICHARD E. GERSTEIN JUSTICE BUILDING located at 1351 NW 12th Street.  [Light refreshments will be available in the lobby during intermission].

Coming next week: The Heartbreak of Disorderly Conduct. 

Tuesday, February 11, 2020

MORENO TO TAKE SENIOR STATUS

DOM broke the news yesterday on his blog. 

Judge Federico Moreno has had a lasting impact on the judiciary and community of South Florida. He made news as a County Court Judge by going home over lunch and bringing a child seat for a woman who appeared in his court for a violation and didn't have the money to buy a safety seat for her child. He issued a traffic bench warrant for a Dolphin wide receiver and then hand wrote "Don't arrest on Sundays." 

He went from county court to circuit court to the federal bench to chief judge of the Southern District and he did it with humility, humor, hard work, and a dedication to serving the people of this community. But for an ill-timed election, he would have spent the majority of his career on the 11th Circuit Court of Appeals. 

Their loss is our gain as Judge Moreno spent his career presiding over trials, dispensing justice, and tormenting lawyers with his (in)famous calendar calls which were no less rigorous then a 20 minute oral argument before the US Supreme Court.  If you wanted a continuance he would react as if he was personally wounded.  "This case is (fill in the blank- 6 weeks, six months, one year old!!) ____how did this one slip by me ?" he would wonder out loud. If you mentioned you needed more time to prepare he shot back "You're a great lawyer. This is easy for you. How much time do you need? We can start at 10 am instead of 9 am..." No mater what you answered you were in box until (sometimes) he would dramatically sigh and wonder if he was getting soft in his old age and give you the time you needed. It was a show, and we were all along for the ride.  Do yourself a favor and pop by and watch a calendar call. It's a treat. 

Trials moved crisply. Time wasn't wasted and woe to any lawyer who was seconds late or unprepared. Personally, we never felt safe showing up anything other than an hour early. 

But justice was done. Judge Moreno could separate the wheat from the chafe. He knew a good case from a bad one, and a serious case from one that was a governmental exercise in bureaucracy. 

Judge Moreno was loyal to a fault. Look at the bench and see how many  "Moreno Clerks"  are now Judges. He was a mentor to a generation of young lawyers and Judges. No investiture was complete without an appearance by Judge Moreno with the explanation of how he affected that Judge's career. 

Review all we have written, and one thing becomes clear- This is what a Judge should be. 
Taking senior status means Judge Moreno will still do what he loves. How can he do anything else? He belongs on the bench, inquisitive mind probing the lawyers, finding the weakness in their arguments, making a ruling, wondering our loud if "three judges wiser than me" ( a phrase he appears to have invented- we first saw him use it in State Court) will agree with him.  
Another memory we have is him complaining during his arraignments in state court that "that blind clerk doesn't like me", because we were all told cases were "blind filed" and he felt he was getting a lot of cases. But make no mistake. He watched his numbers closely and was always one of the most efficient and hardest working judges in the court house. 

Judge Moreno was and is a great judge. Sui Generis. And we are lucky he chose to serve our community. 

Monday, February 10, 2020

EFILING EVILS

There are many good things about E-filing. No stamps. No mail. No clocked in copies. 
But there are so snafus. There is no standardized set of categories for motions. An amended motion for an Arthur hearing may be on the Menu in Duval County, but not Broward ("You want a bond? Surely you jest!").

But perhaps the biggest issue is the email addresses for the PDs and the SAO. 
After a flurry of comments via FACDL, we can report the following: 

SAO: Miamidadelostmotions@notjanetreno.com.  Ok, small joke. 

Here are the real addresses as of February, 2020. 

efilingstatus@pdmiami.com

Felonyservice@pdmiami.com

efiling@Miamisao.com

OK, lets try and work this out. First, we can imagine the conversation: 

"Hey Carlos, it's Kathy. Let's try and made the same e-filing portal. How about efiling at and then Miamisao or pdmiami?"
"Sorry Kathy, we like efilingstatus."
"But ours is easier."
"It's also easier not to file all those enhancements on cases. How about a little reasonableness in handling cases?"
"How about minding your own business?"
Click..click.  There is no bipartisanship even at the local level in Miami. It's easier to get Mitch McConnell show up at Nancy Pelosi's birthday party then get the PDs and ASAs to agree on anything. 


To resolve this problem, which is more intransigent than getting the West Bank issue resolved for the Israelis and Palestinians, why not felony@ and misd@ or misdemeanor@ and then the address for the SAO or PDs?

No, that would uniform and easy, and we cannot have that. 

So then lets have some fun. 

For the PDS we suggest

WemakemorethanAsas@pdmiami
pleaofferrejected@pdmiami
betterlawyers@pdmiami
notbennett@pdmiami
howaboutacontinuance@pdmiami


And for the SAO

Victimwantsthemax@miamisao
enhancement@miamisao
nodisco4you@miamisao
canyousayminman@miamisao
shewhocannotbenamed@miamisao
reelectkfr@miamisao

Coming up next: To save money Governor DeSantis suggests the PDs and SAO pool their money to buy office supplies. Carlos wants yellow legal pads while Kathy insists on white ones. Carlos wants blue gel roller pens, while Kathy wants black ballpoints....

Friday, February 07, 2020

A LITTLE WEEKEND FUN

Football season is over. Summer is far away. All those trials you continued in November and December are coming back up and it's time to fish or cut bait. 

Lets have some fun

When did the Justice Building open? 

Name the first Asian-American Judge in Miami. 

Name the first female judge in Miami. 

Name the judge who tried Ted Bundy in Miami. 

Name three county court judges who became federal court judges.

Has any judge gone from the Miami State court to the 11th circuit? 

Name the Judge who was reversed by the 3rd DCA for putting a defendant into PTI. The court held PTI was a State Attorney Program and only the SAO could place someone in the program.

Who was the "great corruptor" and who presided over his trial?

Name the last three chief judges of the 11th judicial circuit starting with the current one. 

What Judge prosecuted Jim Morrison?

Name the last State Attorney arrested and what were they arrested for? The arrest did not necessarily occur when they were in office. 

What Miami Judge was profiled on 60 Minutes? 

12 of 12. Get a life You know too much.
10 of 12. A true REGJB Historian. 
8 of 12. It's not good to walk and text at the same time.
6 of 12. You have a gentleman's C
Less than six. You were born in the 1990's. Get away from me kid, you bother me. 



Wednesday, February 05, 2020

A CALL TO EYES

This is not a call to Arms but a call to Eyes. Specifically to save our eyes. We as lawyers do a lot of reading and writing. Judges, about whom we normally do not worry much, get a lot of motions. Some judges even read them. As we advance electronically, saving paper becomes less of an issue. Saving our eyes should become more of an issue.

In order to prove our point, this entire post is in the smaller text except for this sentence. 

Therefore, be it resolved...

That electronic filing is now required in both state and federal courts.
That Judges and lawyers read many documents in electronic format.
That the increase in font size from 12 to 14 results in much less stress on the eyes and makes reading all documents easier if not more enjoyable.
That whatever committee handles such matters  (Chairman: I now gavel to order the Florida  Standing Subcommittee on Fonts. The Chair recognizes the representative from Rainbow Springs, Florida...) should hold hearing if not readings.
That Florida should adopt a uniform requirement that all documents be in Times New Roman size 14 font.
That such an action is endorsed by the National Association of Optometrists.
That upon adopting size 14 Font as the uniform standard, the rules regarding lengths of briefs in state and federal courts and the length of motions in federal court (there is a local rule limiting the size of a motion to 20 pages- you didn't know that, did you? But we did) the length limits for documents should be adjusted to account for the larger font.

#saveoureyes
#lawyersarehumantoo

Tuesday, February 04, 2020

FLORIDA SUPREME COURT SUSPENDS ASSISTANT STATE ATTORNEY FOR ONE YEAR .....


THE CAPTAIN REPORTS:

ASSISTANT STATE ATTORNEY SUSPENDED FOR ONE YEAR .....

"The uncontested report of the referee is approved and respondent is suspended from the practice of law for one year ...."

Those are the words from the opening line of a Florida Supreme Court Order suspending ASA Colleen Marie Dunne, a prosecutor employed by the State Attorney’s Office in Monroe County. Ms. Dunne has been a member of The Florida Bar since 2000.

From the Original Complaint:

5. Respondent was assigned to prosecute the case against Mr. William Thomas Skinner, who was arrested on June 1, 2009 for multiple felony counts, including attempted murder and burglary of a dwelling with a firearm.

6. In January 2010, the defense placed Respondent on notice that it intended to rely upon an insanity defense in the case. Respondent thereafter received two reports from the defendant’s two mental health experts.

7. The State hired its own expert witness. The State’s expert, Dr. Michael Brannon, advised Respondent to provide numerous items to assist in his evaluation of the defendant, including jail calls and other statements made by the defendant around the time of his arrest which would demonstrate his state of mind at that time.

8. Respondent was also advised by her supervisor that she should listen to the defendant’s phone calls on the jail’s recorded line. Both Respondent, and an intern acting at Respondent’s direction, listened to numerous phone calls of the defendant.

9. Three of the calls Respondent listened to were the defendant’s conversations with his son on the day of his arrest. These calls were significant in that they refuted many aspects of the defendant’s purported insanity defense as documented in the defense experts’ reports. The calls demonstrated that the defendant was lucid, organized in his thinking, able to plan, that he remembered the events in question and that he had not suffered any blackouts. The instant complaint arises from Respondent’s misconduct related to these phone calls.

10. On July 6, 2010, Respondent’s intern downloaded these three phone calls to a DVD, and notified Respondent of same via email.

11. On July 16, 2010, the intern emailed the audio recordings of the three phone calls to Dr. Brannon, the State’s expert, along with a memorandum detailing the relevance and significance of each of these phone calls to refuting the purported insanity defense. Respondent was copied on this email.

12. On July 22, 2010, Respondent spoke for two hours on the phone with the State’s expert, Dr. Brannon. They discussed the three jail house calls during that conversation, and Dr. Brannon indicated he would utilize the calls for purposes of his evaluation of the defendant.

13. On July 26, 2010, Respondent deposed the first defense expert. The following morning, on July 27, 2010, Respondent deposed the second defense expert.

14. Respondent did not identify or produce the three jail house calls to the defense or the defense experts either prior to or during these depositions, despite an outstanding discovery request for statements made by defendant.

15. At the deposition of the defendant’s second expert on the morning of July 27, 2010, Respondent asked pointed questions which insinuated she had knowledge of statements made by the defendant to his son. Defense counsel, Ms. Cara Higgins, confronted Respondent and inquired directly:

Q. Is the State in possession of some statements allegedly made by the defendant that day that the State is referring to?

A. I’m not in possession of any statements Mr. Skinner gave to law enforcement or that I’m referring to. I’m not. I’m not in any possession. I have turned over any and all statements that he has made on that day.

Q. The State is not in possession of any statements allegedly made by the defendant to his son about organizing, et cetera, that is your entire line of questioning about this?

A. I will provide any and all statements that Mr. Skinner made that would be required under the discovery rules.

Q. Demand for discovery has been outstanding.

A. I know, Ms. Higgins.

Q. Is there something that the State is aware of?

A. Ms. Higgins, I’m well aware of my discovery obligations and I will provide any and all statements that I have . . . .

16. Following this deposition, Respondent returned to her office and emailed her supervisors requesting direction. The following morning, she filed supplemental discovery responses and produced the three jail house phone calls in question.

17. The Defense thereafter filed a Motion to Exclude the three jail house phone calls based on Respondent’s actions. A hearing on the motion was held on May 10, 2011.

18. At the hearing on the Motion to Exclude, Respondent attempted to explain the statements she had made to defense counsel at the deposition.

19. Respondent told the court that the jail calls were equally available to the defense as to the State. Respondent stated, "At the time of this deposition I was not in possession of those calls. Those calls were at IC Solution."

20. Respondent continued, "At the time that I was deposing these witnesses I was familiar that Mr. Skinner had been making phone calls, but I didn’t have them literally downloaded on a disk."

21. This statement was directly refuted by the July 6, 2010 email from Respondent’s intern to Respondent, indicating she was almost done downloading the calls to a DVD, and by the subsequent email from her intern on July 16, 2010, forwarding those recorded and downloaded calls to the State’s expert.

22. Respondent thereafter explained to the judge that she did not know she was going to use this evidence until after the depositions of the defense experts, stating that it was the defense experts’ answers that made her aware of the relevance or significance. At the same time, Respondent reiterated the false statement that she had not previously downloaded the calls: "Doctor Haber did not give specific answers to those questions. Doctor Haber was the first deposition which was taken place July 26th. The next deposition was Doctor Jacobson and in that deposition I still did not - - I had not downloaded those calls. I had not documented these calls. But that’s when I asked the questions that related to the characters which relate to the defendant’s behavior on the day in question."

23. Respondent’s purported lack of knowledge of the relevance of the phone calls is refuted by the July 16, 2010 memorandum documenting the calls and their significance, as well as by Respondent’s admission that the State’s expert directed her to look for exactly these types of phone calls and statements of the defendant which would demonstrate his state of mind close in time to the criminal acts.

24. Following the hearing on the Motion to Exclude, the court held that, although a violation had occurred, the Respondent had turned over the subject phone calls well in advance of trial, and there was, accordingly, time to cure the prejudice resulting from the violation. As a result, the phone calls were not excluded. The matter proceeded to trial, and the defendant was convicted. His subsequent appeal was denied.

25. In the interim, in 2013 the defendant’s counsel filed numerous public records requests to the Monroe County State Attorney’s Office, and litigation thereon ensued. As a result of the court’s orders, numerous emails between Respondent and her intern, and her supervisors, were discovered.

26. Throughout the pre-trial and trial stages, Respondent continuously denied having "possession" of the three phone calls at any time prior to her depositions of the two defense experts. It was not until the defendant’s 2013 public records request revealed the emails between Respondent, her intern, and the State’s expert from July 2010, that her misrepresentation was discovered. At that time, it became clear that Respondent in fact had both physical and constructive possession of the three phone calls weeks prior to her deposition of the defense experts.

27. As a result of that public records disclosure, the defense filed several post-conviction motions, including a motion for a new trial and a motion to disqualify the state attorney’s office from participating in any further proceedings.

28. Following the April 2015 hearing on defendant’s Motion to Disqualify the State Attorney’s Office, the court entered an Order denying the requested relief on various grounds, notwithstanding its detailed finding that Respondent violated her ethical obligations in the case. Specifically, the court found that Respondent:

"clearly had the recorded phone calls in her possession at least one week prior to the defense depositions, if not much earlier, and she intentionally withheld them. . . . At [the May 10, 2011 hearing on the motion to suppress], the prosecutor, Colleen Dunne, violated her ethical obligation to this court when she clearly denied her possession of the three recorded phone calls prior to the deposition of the defense experts. . . . Ms. Dunne’s behavior in the instant case fell below the ethical expectations of this court, and that of the people of the State of Florida. The prosecutor has an ongoing obligation to properly disclose information relevant to a case. There is no question that the prosecutor knew the jail calls were damning to the defense of insanity, and that her delay in disclosing the calls was gamesmanship. Gamesmanship has no place in the criminal justice system."

THE COMPLAINT

LINKS TO SEVERAL DOCUMENTS IN THE FILE

THE CONSENT JUDGMENT

SUPREME COURT ORDER


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

Monday, February 03, 2020

WIG OUT

Monday saw a 100 year draught hit the REGJB. 🚰
The water was shut off for most of the afternoon. 
Judges used to an afternoon Nescafe were cranky as espresso machines everywhere ground to a silent halt. 
Toilets 🚽 could not be flushed. 
Hands  could not be washed. 
Faces could not revived with a cold water plunge. 

The cause? A woman tried to flush her wig down the toilet on the second floor. It got stuck and a pipe burst. 

The reason for the wig-out? 
No one needs a reason for wigging out in our beloved REGJB. 


DO WATCH THE STATE OF THE UNION

A wise person once told us "life has more imagination than we do". With that bit of wisdom, we view Tuesday's State of Union Address by a president facing removal in the Senate as a unique moment in history. 
A different leader would ignore the upcoming vote which is the politically correct move. Rise above the controversy we say. 

BTW Monday is the 61st  anniversary of the day the music died. 

Florida Supreme Court: Any additional thoughts on the politicization of Florida's highest court? The Court has not been this criticized since an ex-justice was arrested in 1982 and charged with conspiring to traffic in over 10,000 pounds of marijuana. For double blog bonus points...Name that Justice! 


US SUPREME COURT  ARGUMENT DOCKET FOR MARCH:
Notice a trend? 

 Trump v. Vance, arising from efforts by the Manhattan district attorney to obtain several years’ worth of Trump’s tax returns as part of a state grand-jury investigation, and the consolidated cases of Trump v. Mazars and Trump v. Deutsche Bank, in which congressional committees are seeking financial records from Trump’s accounting firm and lenders. 

If you took our advice and didn't watch the super bowl, what did you do? We went for a long bike ride and then returned to a cold home and had some home made soup and watched "Guess Who's Coming to Dinner" with Spencer Tracey, Katherine Hepburn and Sidney Poitier.  I was on TV the day before and we recorded it. 

It wasn't that long ago that people of color were politely referred to as "negroes". Spencer Tracey says at least once in referring to Poitier's character as "that colored fella". This was also a  very common form of speech in the 1960s. 

Saturday, February 01, 2020

DON'T WATCH THE SUPER BOWL

UPDATE: OF COURSE WE GOT THE COIN FLIP CORRECT. WE ALWAYS DO. There is a reason we call it a lock solid bet. 

UPDATE: Not sure how we missed this. Today- 02 02 2020 is the FIRST real palindrome date in 909 years.  Prior date, in case you were wondering was 11 11 1111. (Notable for the last time Miami Dade parking had spots available in lot 26).  
And even more fun, today is the 33rd day of the year with 333 days remaining. 
Next up 12 12 2121 in 101 years. See you then. 

Don't watch the super bowl, See below.
Here it is, our world famous, much anticipated, lock solid Super Bowl bets. The hardest bet is the big one-who will win the game? San Fran is a one point dog. 
The 49ers appeal to us. They are a throw back to the teams of the 60's and 70's- a ferocious defense combined with a tough running game. "Defense wins championships" is the old adage. 

And then we get to the Chiefs and their game changing QB P Mahomes. Unlike other recent Super Bowl QB's, Mahomes and his coach Andy Reid are the real deal. They win games without cheating. 
We want to pick the 49ers. We are rooting for the 49'ers. There is nothing more than we would like to see than a 16-7 game, punctuated by some hard sacks, a few key turnovers, and one game changing play. 

But speed kills, and KC has speed. Boy do they have speed. Knowing we have placed a sizable money line bet on the 49ers plus 120 (betting a 100 on San Fran to win the game outright yields a return of 220- 120 for winning and a return of the 100 bet), our blog pick is KC -1.  

Our big prop bet is 49er OB Garoppolo throwing more than 1.5 TDs, even money. 
Take Tyreek Hill's first catch to be for more than 13.5 yards, -110 for $25 bucks.  
Lets put 10 bucks on the SF Defense to make the first score of the game +2100. That hit would fund more than a few dinners at Per Se and 11 Madison. 
Winner of the 15th Puppy Bowl 🐶: team Fluff- -300.  We have it on good authority Team Ruff's practices have not gone well. The puppies aren't listening and they tend to chase their tails and bark and jump a lot. 

Total Interceptions in the game- over 1.5  +150. We will take that for $50. 
There will be a flea flicker in the game- +260 for $50.00. 
Over/Under 55- Under. 

Just for fun- ten bucks on each
49ers win by 
13-18 points- +1000
19-24 points +1600
25-30 points + 3000
31-36 points +6000

And now for the lock solid, never fail exclusive Rumpole pick of the coin flip. This weather is causing complete havoc with our simulations. The humidity is way off and the barometric pressure keeps fluctuating. It was worse when the game was at the Orange Bowl, with the open end of the stadium receiving an ocean breeze, and Jets flying overhead. 
After careful consideration, we confidently predict that the coin flip will be...…..
TAILS. 

Don't Watch The Super Bowl

It has invaded our national psyche like a tape worm. Yahoos believe we are great because of it; we are good despite of it.  We worship the Super Bowl like a religious idol, bowing down to the former gods who now limp crippled well before they are old by the ferocity of hits they absorbed

So don't watch the super bowl.

There are books to be read; sonnets to be said. Art museums to peruse; bike paths to use. 
Small movie theaters showing black and white art films fifty years old can be found. Go brush a hound.  
Wander down a side street and discover a small café. 
Listen to Bach.  Do some yoga. Bake a cake. Find a yard to rake. 

There is so much more to life than spending hours before a television watching a game that is rarely great. We had the pleasure of seeing the first great and competitive Super Bowl- X, right here in Miami- the second to last time the SB was played in the Orange Bowl. But since that time we have- to use coach Hank Stram's word he made famous in SB IV in 1970(the last time the Chiefs won a SB) -matriculated to more important things. 

We will not be watching the SB tomorrow. We urge you to do the same. Break free. Be a contrarian. Live life.