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.