CALIFORNIA CASE LAW A TWO PART SERIES

"I was reading case law...lots and lots of case law". 

That was the defense of Miami Judge Martin Zilber to the JQC complaint that he was not in his chambers or courtroom when he was supposed to be. That...(prepare to be shocked, and please send small children out of the room) the Judge took MORE TIME OFF then he was allowed to take. (cue ominous music).

Now we have two questions- first, what case law was he reading and, 2- where was he reading it. 

(foggy dream sequence chambers of Judge Zilber. Dramatis Personae- Judge Zilber; JA (more on her tomorrow). )

JZ: What's on the calendar tomorrow Moneypenny?

JA: 35 criminal cases set for report, plus arraignments. 

JZ: Any of those cases need PD appointments?

JA: Yes sir.

JZ: Then get me Giddeon v. Wainwright.  Any of those cases involve confessions? 

JA: Yes sir. 

JZ. Then get me the Miranda decision. Also, throw in Marbury v. Madison to review.

Now, with the understanding of great legal study taking place, where was the studying occurring? 

The Miami Dade Court law library? (stop laughing, we once saw a judge in there in 1979).  UM Law Campus? Harvard Law? No, no and no. 

The studious judge was some place more studious, more synonymous with intense legal study, meditation, contemplation, not to mention swimming pools and movie stars (obscure reference to Beverly Hillbillies  for those of you under 50) ....MALIBU!. 

Yes Malibu, that land of beaches and California  where significant legal issues are endlessly debated. Walk by any Vegan Cafe in Malibu and you're likely to hear "The Oklahoma Supreme Court is taking a hard look at the exclusionary rule. Meanwhile have you seen what that appellate court in Maine wrote about police stops?' It was in this bastion of legal study that Judge Zilber repaired to for repast and reflection that has the JQC up in arms. 

A PATRON OF THE ARTS

You never know what is going to come out of a JQC investigation. It's like an IRS audit, but more painful. It turns out our legal scholar is also a patron of the arts. Judge Zilber admitted to using his staff for personal errands like on-line shopping ("Should I click the set up monthly delivery button on Amazon Ms. Moneypenny?" "No sir. No one needs that much fiber and shoe polish. One batch should be enough for the rest of the year."), registering his car (in retrospect better to have a JQC complaint about an expired tag then this mess), and sending his overworked and underpaid bailiff to Miami Beach to get him Art Basel tickets. On this we give the judge a pass. Call it "Rumpole's Patron of the Arts exception". We all need a little more culture in our lives. 

Unfortunately the Judge also asked his JA to "Keep a personal scrapbook of his achievements"  (wonder if this will make it?) and wheel his chair up several floors and put it on the bench while his JA was pregnant. Hey- women wanted to be treated like equals right? The bailiff was unavailable and how would it look for a judge, robes flapping, hauling furniture around the courthouse? A pregnant woman was sure to engender some sympathy and a nice stranger would surely step in and help the pregnant woman. Not. 

Zilber's defense: "I only asked the staff to do this. I did not tell them." (He really said this). This is nice to know.  Judge: "I hereby sentence you to five years in prison."  Defendant: "Are you asking me or telling me?" 

THE CONSPIRACY 

Every former PD and ASA will tell you the surest way to get caught in a crime is to bring in a partner. Do it yourself, and there is no one to flip on you. Zilber, who does not have a background in criminal law learned this lesson the hard way. He asked his JA to falsify his documents that he has to file that account for his time. Now there is a co-conspirator and witness and this was his downfall. 

Did you know our Miami Circuit has an administrative order that judges can only take off 30 days a year? (really). The JQC found that between January 21, 2019 and March 31, 2020, the Judge took off 51 days without authorization. The operative part of the finding is that this is when he was assigned to civil. Because once you hear he was in civil, the response is "Oh...he was in civil. Big deal." 

Here is the show stopper, directly from the report: 

Zilber during the same period. Judge Zilber testified that on some of the days he was absent without authorization in 2019, he was working remotely from home reading case law or preparing for hearings.

Rumpole says, a judges work is never done. From sun up to sun down, its case law case law case law. And trial prep-don't forget that. Just how does a judge prep for trial? They don't make openings or closings or question witnesses. Wait! We know. They prepare voir dire! That must be it. He was writing out individual voir dire questions for every case set for trial, based on his extensive review of the facts of the case. Of course. 

From the report: 

 The Commission also found that during the week of August 3, 2020, Judge Zilber took a week-long vacation to Malibu, California without making the proper leave notifications or requests. In fact, the Commission found that he instructed his JA to not submit a leave request or ask for coverage for that absence because he was going to be working remotely anyway. Judge Zilber testified that he planned to, and did, sign orders, and continued to participate remotely in legal community events, read case law, and prepare for hearings set for the following week. However, instead of remotely attending to his regularly scheduled hearings and dockets, Judge Zilber instructed his JA to cancel and reschedule the hearings and dockets from the week of August 3 to another time.

During the pandemic the judges were supposed to keep a diary of their activities (Ok  a log but we like the dairy image better). Zilber committed a boo-boo: 

There is also a blank space for "notes". For the week of his August 3 vacation, Judge Zilber instructed his JA to list two motion hearings on the pandemic log, and four "special set" hearings. While the Commission was able to determine that Judge Zilber did remotely conduct two emergency motion hearings on Friday August 7, 2020, the Commission also determined that the four "special set hearings" listed on the pandemic log were, in fact, social and/or educational Zoom meetings including a Cuban American Bar Association luncheon, a Florida Bar town hall meeting, and a swearing in ceremony. In response to the Commission's Notice ofInvestigation, Judge Zilber stated that, when he told his JA to list the other functions, he misunderstood the purpose of the log, and believed it was designed to give the Administrative Judge a general perspective of the activities that judges were engaged in during the pandemic while working remotely.

Rumpole notes we have a circuit court judge given the power of life and death who must interpret difficult statutes and case law, and he cannot figure out how to keep a diary? Puhleeze.  On the other hand, now that we know "special set hearings=CABA Luncheons" we can ask for more continuances: 

"I'm sorry Judge, I cannot try the case the week of May 3, I have a special set hearing on Wednesday." Judge: "What is that hearing counsel?" Rumpole: "The National Association of Criminal Defense Attorneys Spa Day. It's at the Fontainebleau and I never miss it. The massages are great"

Here is something sure to strike fear in the hearts of Judges everywhere: 

the Commission also believes that it is not unreasonable to expect that a judge serving in a trial-level court, especially one as busy as the 11th Judicial Circuit, be generally present at the courthouse during normal court hours.  Cue Dolly Parton Video: "Working 9 to 5 what a way to make a living. Granting Summary judgment motions, and reading case law by the ocean." (Pacific Ocean).

TOMMORROW: THE UNKNOWN STORY 

Think this is the end of the Judge Z story? It is just the beginning. There is a story behind the story, one filled with intrigued, revenge, and of course mortgage foreclosure litigation. Coming Sunday. 

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