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Friday, February 26, 2021

WOOPS

 Good lawyers do their job and try hard. Great lawyers assume nothing, challenge everything and leave no stone unturned. 

Joel Hirschorn is a great lawyer, truly deserving of his legendary status as "Diamond Joel", which he was known as around the REGJB in the drug trafficking heydays for his diamond tie tack. While we do not know him, Andrew Sarangoulis, who was lead counsel with Mr. Hirschorn on a case that resulted in the 3rd DCA vacating a first degree murder conviction, deserves kudos for great work. 

Let's take a deeper dive. 

In 2014 Joseph Phelps was convicted of first degree murder. He conviction was affirmed on appeal. Enter Mssrs. Hirschorn and Sarangoulis on a 3.850 habeas petition. Talk about a long shot. So what did the defense team do? They started at the beginning. They assumed nothing, and reviewed everything. And lo and behold what did they find? 

Ummmm that the trial court "forgot" to give the reasonable doubt instruction!!! Wait- was this trial in Broward? Nope. It was here in Miami. And not only did the trial court forget to give the reasonable doubt instruction, the error was missed by the prosecution, the defense, and the defense on appeal. 

Woops, double woops, and triple woops. 

Just how did closings go? "The court will instruct you in reasonable doubt" - every attorney who has walked though the door of 1351 NW 12th street has told a jury in voir dire, opening and closing arguments. 

Did they fumble through their jury instructions packet? Or did the learned trial judge just miss it because of the pressures our poor, underpaid robed readers are under? 

The real story here is the lawyering at the habeas stage. It is realistically the client's last shot. Lawyers need to roll up their sleeves, start with the a-form and end with the verdict form and not overlook anything, including the boring jury instructions. Imagine the aha moment here when the defense team, surely late at night, a lone lamp burning in dark offices at Gray Robinson, sips a lukewarm cup of coffee and sighs and turns to the jury instructions of the transcript. "Thank you all for your attention. I will now read to you the jury instructions in this case. ....for over 200 years we have all agreed to abide by a set of laws. There are no other laws in this case."

"Ok, tomorrow I'll re-read the appellate briefs....hey...wait a second... did the judge read reasonable doubt? Of course s/he did. But...let me just check...introduction to homicide...definition of first degree murder...when there are lesser included counts...second degree murder....the first thing you should do when you enter the jury room is elect a foreperson. Either a man or woman can be the foreperson of the jury....NO REASONABLE DOUBT??? This cannot be. Let me do this again.... (papers now being frantically scattered across an already messy desk as the transcript is reviewed)NO REASONABLE DOUBT INSTRUCTION??!!  Surely this was raised on appeal....where are those appellate briefs....hmm...it was not raised on appeal???" 

A phone rings late at night. One of the lawyers is calling the other "You're not going to believe this, but on the Phelps case, I think I found something..."

The scene now shifts to the 3rd DCA in a small conference room: "We can't PCA this can we?"

"Of course not. There is precedent..." (nervous laughter in the room). 

"I mean, it has to be reversed right? Have we done that yet this year?"

"No...but still, we usually do one or two a year."

"Still, a PCA would stop any further appeals."

"It's reasonable doubt for gosh-sakes. It's not like the lawyer was sleeping during the trial. That's been affirmed before. But this....I mean who forgets to read reasonable doubt??"

CJ: (sigh) "Ok, all in favor of a reversal say 'aye'. 

CJ: "allrighty then. I'm the CJ, I'll write the opinion." 

Ladies and Gentlemen, may we present to you the winners of the 2021 FACDL MIAMI CHAPTER (dues due now) AGAINST ALL ODDS AWARD- Diamond Joel Hirschorn and Andrew Sarangoulis. (cue Rocky Theme Music as lawyers all rise at home (the awards ceremonywill be on Zoom again this year) and give these lawyers the standing ovation they deserve.

The opinion is here.  


Phelps Decision by HR on Scribd

 
Coming this weekend- the most unusual Rumpole post ever.

11 comments:

Anonymous said...

What I want to know is who was the Judge, ASA and defense attorney. How could all of them miss that.

Anonymous said...

Mistakes. It seems like the Third could have mentioned that the whole trial cast was also outside the acceptable professional norms. But the appellate lawyer gets the criticism because he or she was looking at what the original geniuses said was important.

Anonymous said...

What has happened to the great major crime prosecutors of the past like, David Drawbert, Jim Woodward, Terry McWillams, Ira Dubitski, Fred Graves, Jeff Raffles,and the toughest of all, Eddie O'Donnell.?

Anonymous said...

Has anyone ever given a closing and not used that instruction?

Anonymous said...

Lately, you have highlighted podcasts of famous lawyers with famous clients and how they won their respective cases. These shows are informative. However, what would be an even better learning experience is to get some prosecutors and defense lawyers to talk about cases they lost and what mistakes they made and how they would do things differently. I tried some big cases. You win some and lose some. But I always learned more from the losses than the victories.

Anonymous said...

ASA Luis Caso, Def Atty Mark Eiglarsh and Judge Christina Miranda according to CJIS

Daniel Tibbett handled the direct appeal according to the 3d DCA website

Anonymous said...

Joel is one of the best lawyers I have ever had the pleasure of trying a case with. I love the guy. Funny, tenacious, kind and sincere. I learned a great deal from him.

Anonymous said...

McWilliams, Dubiously, Graves and Raffle are all deceased. Jim Woodard, not Woodwatd, kind of faded away. Ed O'Donnell probably retired after Diane left the bench. Woodard and O'Donnell were great defense lawyers, too.

David Oscar Markus said...

The podcast doesn’t just talk to lawyers who won. The very first episode is with Donna Rotunno, who discusses the Harvey Weinstein trial.

Anonymous said...
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Anonymous said...

"The podcast doesn’t just talk to lawyers who won."

Did you ask Roy Black about the John Goodman trial? Goodman is now arguing a 3.850.