In preparation for our ground breaking, earth-shaking, robe-wearer-quaking post on Monday, we use this Sunday to clear up some loose ends.
First, Diamond Joel Hirschorn, ever the class act, wrote to us privately that the real story behind the discovery that the trial court neglected to read the reasonable doubt instruction was a little less dramatic than our post, which took some literary-license with the scenes of discovery, not to mention the 3rd DCA deliberations (and perhaps it is time to give kudos to the panel- CJ Kevin Emas, and neewbies and former prosecutors Flor Lobreee and Monica Gordo. We expected no less from Judges Lobree and Gordo as former prosecutors. In their time at the SAO they were known as reasonable and fair and it was nice to see them in the majority here. BTW- if you like reading 3rd DCA opinions, keep an eye on Judge Gordo- some of her dissents have been superb and she is making a reputation for herself as an original thinker. It is gratifying to see.
In his email to us, Diamond Joel gave all credit on the briefs to his co-counsel Mr. Sarangoulis, and had some mild criticism for the State not admitting error. We find the last part troubling. A man is serving life in prison, and the fundamental basis upon which our entire criminal justice system rests- a jury considering whether the prosecution proved their case beyond a reasonable doubt- was not in play during the trial. And despite that, the State - with their unsettling blood lust, sought to keep Mr. Phelps in prison until he died. The Florida Bar should be investigating whether these state bureaucrats should be held accountable for their lack of prosecutorial professionalism, the first requirement being sworn to ensure that the laws of the State are followed and executed. On this point, they failed miserably. Not for the fact that the RD instruction was not read, but for not immediately agreeing that a new trial was in order.
Second, many people are emailing us asking if they should take the Johnson and Johnson vaccine or wait for the Pfizer/Moderna jab. The answer is an unequivocal YES. The main reason is this- ignoring all of the other numbers for a moment, the JnJ vaccine is 100% effective in stopping hospitalizations and death for Covid19. That means that no one- zero, nada, was hospitalized or died after getting the JnJ vaccine, even if they got Covid. That means everything.
Now lets take a deeper dive into the numbers. First praise for Pfizer. Not only are the P=jabs 95% effective against Covid19, but those numbers have been confirmed in real life field testing in Israel in which, reviewing over 250,000 people who got both P-Jabs in the last few months, the vaccine approached 98% efficacy. These numbers are more recent than the P-jab studies conducted 8-10 months ago, in the US, Europe, Africa and South America when there were less and less serious variants. So the Pfizer vaccine works and is working now.
The JnJ jab was tested more widely and more recently than the Moderna shot, which was only tested in the US, and also was tested at a time when there were less and less serious variants. Preliminary data shows that the Moderna vaccine is very effective against the deadly South African variant. which is good. But the final thing to remember is that with all three vaccines you are comparing Broward Judges to Miami Judges- there is no comparison. One set of the Judiciary will take lawyers who are from another county out of turn and another won't. You figure it out.
If offered the JnJ jab, just keep telling yourself this- a month after I get this vaccine, I have zero chance of dying from Covid. Period. End of story. Roll up your sleeve, grit your teeth, get a lollipop and leave with your life protected.
It is fair to say we are at a tipping point in our battle for Covid- but there is no doubt how it will end. We will prevail- we can make boosters and new vaccines that will shut this sucker down and a year from now, someone dying from Covid will be a rare and isolated event.
WE CLOSE WITH THIS:
What would have happened if Covid came in 1977, or 1987, or even 1997? Would the Justice system have survived? In 1977 or 1987 most people didn't have cell phones (remember beepers?). In 1987 laptop computers were a rarity, there were no Ipads, and we accessed the internet with a dial-up modem. Even in 1997, internet access and speeds were such that we could not have streamed Zoom hearings. And there was no e-filing at the time. So what would have happened? The clerk's office would have to had a person on the front steps, wearing a mask that they could not buy from Amazon, taking filings. We cannot even imagine the lines at Eckards (remember them?) to buy a box of masks.
Court hearings to process new arrests would have to take place in Lot26. Regular calendars would have to be held across the street under tents, or in the Orange Bowl. Even the dissemination of information about what was happening would have been near impossible. The Herald (gasp!) would have played a crucial role in telling people where to go and when.
This could have been worse. We did not have the mRNA technology that the Pfizer and Moderna vaccines use. The JnJ weakened adenovirus would have been the first jab created and without computer monitoring and reporting of events, it would have taken a year to collect, collate and analyze the data. And in any of those decades, 9 out of 10 vaccines routinely failed. So let us take a moment and count our blessings. We are well on our way to being back, to having Rumpole prowling the bars of jury boxes, growling out objections, crushing lying state witnesses with a withering glare, and arguing the reasonable doubt instruction-whether the judge deigns to give it or not.
Stay safe.
