SENRYU

 YOU HAVE BEEN WAITING 

ALL OF THIS TIME FOR A SIGN 

PERHAPS THIS IS IT 

IT OCCURED TO ME 

THAT I AM THE ONE 

WHO GOT AWAY FROM MYSELF 

MEMORIAL DAY WEEKEND

 We approach the first holiday where our country is feeling the positive effects of the vaccine. With over 40% of the county vaccinated the number of new daily cases reported is ONE TENTH the number at the apex of the pandemic in January. In other words... the vaccines work. 

Let's pause a moment to reflect on the greatness of our science and technology. A year ago our future seemed uncertain. We reported frequently that the prior record for the quickest time between vaccine development and deployment was the measles vaccine in the 1960s and that took four years. The US did it in less than a year, using a relatively new mRNA vaccine  platform. Even at our  darkest hour, without competent leadership, our private business infrastructure led the way. We need to be grateful for what we achieved, and proud that our country, despite all the problems we have, has given the intellectual freedom to individuals to create technologies that help humanity. Our system of government  that allows the protection of private intellectual property, and gives individuals the incentive to profit from their ideas and labors, has proven once again superior to all other forms of government. Collectivism can never out innovate and out produce a capitalist economy. And it never will. 

YESTERDAY'S POST REVISTED. 

First, we print our errors (as few as they may be) on the front page. Judge Ayana Harris is a county court judge. We originally wrote she was circuit court judge. Second, we pondered whether a judge who was serving in county court had ever been nominated and confirmed  for the federal bench. That turned into a litany of comments noting that Judges Altonaga and Bloom and Moreno, to name a few,  were federal district court judges who had been county court judges. But they were NOT on the county bench when nominated to federal district court. By the time of their nomination they had already been promoted to the circuit bench. So Judge Harris's nomination appears to be unique. 

Nothing wrong with that. As we noted, many lawyers are nominated and confirmed to be district court judges.  There should be NO stigma for serving on the county court. Many of the very best, smartest, and brightest judges we have ever appeared before were County Court Judges. We recall one county court judge within the last 15 years was promoted to the Third DCA,  but the whole appointment to the county bench to begin with seemed a political process designed to just  get the lawyer into the judiciary. 

We re-affirm our support for Judge Harris. As the comments point out, she has what it takes to be a great addition to the federal bench. And perhaps the time she has spent on the County bench makes her uniquely qualified for the federal bench. Federal Court is populated by bright and hard working lawyers on both sides of a case. But in the end the case is about the litigant, not the lawyers. County Judges handle a lot of pro se cases.  They see up close the toll any court case can take on a person. From missing work to the stress and uncertainty of how a case will affect them and their families, any contact with the legal system is difficult for the average person. The understanding of the human costs of a legal case may well serve Judge Harris well during her confirmation process if nominated. We wish her well on this journey. 

DOM covered the retirement of Judge Ungaro yesterday. It included speeches and poems the revelation of a tradition of lunch-time scrabble battles in chambers. We love that. Check out his blog and have a great weekend. 

DE LA O AND HARRIS MAKE THE CUT

CLARIFICATION - SEE BELOW  

As first reported on the local ground-breaking federal blog run by Mr. Markus, two state court circuit judges have made the cut to the final six for the two open spots in the SDFL. Click on the link to see the full list of nominees. Judges Ayana Harris and Miguel De La O were two of the six sent out of the House JNC that they applied to. Since there are multiple JNCs formed, nobody is sure what this means. 

Naturally, we have some thoughts. 

First, we think these are two wonderful nominations. Judge De La O's work on the circuit bench speaks for itself. He is known throughout the REGJB as the "go to Judge" when there are questions about law and procedure. He is hard working, keeps current with case law, and his courtroom demeanor and treatment of all parties is exactly what we want in a Judge. 

Judge Ayana Harris is newer to the bench, but she comes with a perfect background to be a federal judge, including a stint with the federal PDs office, so she is well versed in the nuances of federal law. Although we have not appeared before her, the reviews and comments by other lawyers confirms that she has made the most of her time on the bench and impressed all who have appeared before her. 

But here is what is on our mind. 

Can anyone form a JNC? Can there be an Au Bon JNC, a Burger King JNC, or even that great restaurant in the back of the gas station on US 1 and 17th avenue that has all those great wines. Can they have their own JNC? Wouldn't it be nice to interview candidates over a bottle of Rumpole's Chateau Miami River and discuss the important federal issues of the day? 

"So here is a scenario. In 2025 President Trump threatens to issue a commutation of a sentence for Matt Gaetz who has been convicted of multiple violations of the Mann Act.  How does that affect your decision on sentencing? And would you like to try the Riesling?"

And finally this. Circuit and Appellate Court Judges have been nominated for the federal bench. Quick quiz, name two 3rd DCA judges who were nominated to the SDFL bench. Lawyers have been nominated to the federal bench. Has a county court judge ever  been nominated to the federal bench in the SDFL?  We cannot think of any.  

CLARIFICATION- There is apparently some confusion on our question. Of course many circuit judges who were appointed WHEN THEY WERE A CIRCUIT JUDGE, were, at a prior point in their career, a county court judge. We do not recall any County Court Judge being appointed to Federal Court WHILE SERVING ON THE COUNTY COURT BENCH.  We do not think our original question was unclear. Perhaps our readers are just duller then we previously thought. 

NO MASKS IN COURT PLEASE

 MEMO 

FROM: H RUMPOLE, ESQ., BLOG PROPRIETOR 

TO: FLORIDA SUPREME COURT 

CC: CJ CANADY 

RE: MASKS IN COURT 

It has come to our attention that a dichotomy of sorts now exists. Pursuant to the wide spread success of vaccinations and the order of our Governor, masks are no longer required in doors. Masks are discretionary, and as an aside we urge our friends, colleagues and even those who wear black robes to work to wear masks in crowded in-door situations. Therefore one can now enter a courthouse sans mask, but must wear a mask in court. This in and of itself is probably a good idea. But when the riff-raff and flotsam and jetsam of the morning calendars are cleared and judges turn their laser-like attention to a pending motion, PVH or even a trial, when there are only a few people in court, pursuant to your pending order the litigants must wear a mask. This is wrong. Lawyers and judges and court personnel who are vaccinated should be able to decide if they want to wear a mask or not. If social distancing is being followed, the courtroom isn't crowded, the choice should be an individual one. 

We know you have a lot on plate, what with overturning decades of pro-criminal defense cases and such, but could you please see fit to correct this matter? It is personally affecting us, and others around our state. 

Best of luck in your continued assault on the fourth amendment and getting death penalty jury recommendations down to one with no judicial override. 

Yours, etc.

H Rumpole, Esq. 

HATS IN THE RING

 The REGJB's own Judges Lisa Walsh and Miguel De La O have thrown their hats into the ring for the two federal district court spots that have opened up with Former Chief Judge Federico Moreno electing senior status and Judge Ursula Ungaro retiring and joining Boise Schiller. 

We cannot think of two better choices for these spots and we heartily endorse their applications. That and $5 will get you a coffee at Starbucks. 

Here is a trivia question we do not know the answer to: name the Federal Judges who Judge Moreno and Judge Ungaro replaced. 

WHITER MIAMI ?

We have the vaccine. All around us have the vaccine. The Popeyes near the REGJB is open. Restaurants and businesses all around us are open. The garage across from family court sits open and empty, parking spots just begging to be filled by lawyers' Teslas and BMWs and Mercedes SUVs. 

But our courthouses in Miami remain cerrado. 

The feds announced several months ago they were resuming trials July 6. 

Broward is open. Plantation Key is open. Key West is open. From Pensacola to Two-Egg to Key West, courts are open...except you know where.

Miami esta cerrado. 

Now we applaud the caution and concern of our chief judges. We also realize that on a Friday they cannot just decide to open the courthouse on Monday and that is that. Plans need to be made. Au Bon Pain has to order quiches and croissants. JAs need pens and pads. Judges need....well we are sure they need something. 

The clerks office needs to schedule hearings in person. Send out notices that don't have zoom instructions on them. People need to hear it on the news and see it on @Ovalle305 that the courthouses are open for business. It needs to be snapchatted and judges need to post 20 second videos of them dancing in their robes on the courthouse steps with the doors wide open  on Tiktok.  (Judge Soto we are available to coordinate the public relations campaign gratis.) 

So the point is, lets get rolling. We need to feel the gravel of Lot 26 crunching under our Allen Edmonds shoes, new and shined and sitting in a closet lo these last 14 months unused. We long to sit in court and acted surprised "A plea ? Surely madam, you jest. Are you not aware of what our friend and colleague Mr. Markus famously says- 'you cannot win a plea'." 

Miami Esta ABIERTA! 

OH JOY

 The news we have all be waiting for arrived. Ask any attorney about the hardships of Covid and they might tell you they miss trying cases; they miss going to court; they miss going to the office. But while those answers may vary, the one hardship we have all endured during Covid, speaking for the defense bar one and all- is the inability to go to the jail and see a client. It's what we live for, The joy of a morning spent at the Dade County Jail or TGK, seeing our favourite corrections officers, breezing in and out of the spacious and well appointed facilities, this has been the hardship we have all endured. Who amongst us doesn't want to spend 3 or 4 hours sitting on those lovely plastic chairs in the TGK lobby, waiting to be called? Who hasn't reveled in the joy of sitting in an interview room at TGK and pressing the button to end the interview eleven-teen-hundred times only to be ignored by a corrections officer eating their afternoon repast? And what better way to spend a comfy South Florida afternoon in the warm and lovely confines of the DCJ? 

And now we have the news you have all been waiting for....(drum roll please) THE JAILS ARE OPEN FOR IN PERSON VISITS! 

Come one, come all, spend a glorious afternoon (and evening) waiting to see your client and then waiting to get out. We told you if you just hung on long enough that the deprivations of Covid would fade and we would return to our normal lives. And we were right. 

The Jails are open! WooHoo!! ODE TO JOY 

COVID COURTHOUSE UPDATE

 Here is what is being discussed to open the Miami Courthouses. Note that in true Florida fashion as it now stands you can walk into a courthouse without a mask, but need a mask for a courtroom.  This info is from a widely circulated email, the reprinting of which we have done without the express written consent of the National Football league, subjecting us to all sorts of nasty criminal and civil liability. 

Here are a few possible changes that were preliminarily discussed:

ZOOM vs. IN-PERSON

 Judges would conduct both in-person AND Zoom calendars for daily calendar – not simultaneously, but separate calendars altogether.  The presumption is that the lawyer would appear in-person, but can arrange a Zoom hearing instead by contacting the JA ahead of time

An example of how this might occur is to have regular in-person calendar starting at 9am and the same judge having a separate Zoom calendar at 10:01am (any Zoom calendar would be denoted by :01 in the time it starts)

Arraignments, pleas and trials/hearings would continue to be in-person

Arraignments: as before, the lawyer can file a Notice of Appearance instead of attending and also waive client’s appearance

Hearings: Motion to Suppress, PVHs – still in-person

Trials: still in-person

Soundings: for now, still in-person; Judge Sayfie is not averse to eventually conducting soundings via Zoom; for now, she wants to start slowly with continuing Zoom; this was raised to Judge Sayfie on behalf of private attorneys

In the meantime, a couple ways to avoid having to appear for Sounding is to (1) submit an Agreed Order for Continuance to the judge beforehand or (2) filing a Motion for Continuance in advance and contacting JA to place case on Zoom calendar before Sounding date

Traffic Infractions (non-criminal): continuing on Zoom

LETTER MOTION

 Well, that wasn't fun. After receiving a barrage of emails from outraged readers calling us a "self-hating" so and so, the result of our dipping out blog into the middle east peace process had as much success as Jared Kushner's ill fated attempt. So let's get back to law, where our readers can send outraged emails calling us a "know-nothing so and so". Those emails we are used to. 

In the Southern District of New York they have this odd practice of attorneys filing motions for their clients in the form of a letter, on legal letterhead. "Dear Judge so and so, I write this letter seeking an adjournment of the June 1, 2021 sentencing date...".  The letter then has all the components of a motion, with citation to law, and the results of a conference with the opposing party. 

Not every judge allows the practice. But those who do  also require an email to the judge with the letter. We are fans of the practice for informal motions. It is just a bit easier and in a way it alerts the judge that the motion is more pro forma then say the motions to suppress that Mr. Markus so successfully files and litigates. 

Pro forma motion practice is something that the criminal court judges of Miami should adopt and the window of opportunity was during Covid when courts were closed.  "Dear Judge De La O, I write to ask the court to reduce my client's cost of supervision to ten dollars a month. He is currently supporting his family by working two jobs including one as an Uber driver and the probation officer and prosecutor both agree to the motion. My client has been on probation for one year with no violations and he has one year left and this is his first offense - the charge was resisting arrest with violence." 

Now of course you will have to use your imagination because no client of Rumpole's is ever pleading to a ridiculous charge like that. But you get the point. Letter motions would help clear the judicial  calendars  of some of the jetsam and flotsam of legal motions and allows our  Judges to focus their time in court on more serious matters- like motions to suppress in criminal mischief cases.  

WHY ISRAEL IS WRONG

 "Hate begets hate; violence begets violence; toughness begets a greater toughness. We must meet the forces of hate with love." Dr. Martin King, 1958. 

First, if we are going to have this discussion, lets do away with the basic facts which you dear readers can refrain from emailing us in outrage. The latest round of violence began with Hamas shooting rockets into Israel targeting and killing innocent civilians, including children. Hamas is a terrorist organization. 

Those are the facts and they do not excuse Israel's actions. This conflict did not just begin now. It has a long history. There are two peoples that were Stateless in the first half of the 20th century- the Jews and the Palestinians. Both laid historical claim to the land known as Palestinian. When the political and diplomatic dust settled Israel was formed. Several wars later, Israel has survived and thrived. Peace has been achieved with Egypt. Earlier this year several Arab states opened diplomatic relations with Israel. 

Meanwhile, Palestinians remained packed into tiny refugee camps. Children were born to the second and third generation of parents who were born and grew up in the refugee camps. The ability to survive and thrive and for Palestinians to create for their children the simple goal of every parent-  a better life for their children, died in the hopelessness of the refugee camps.  For example, in the Al-Shati refugee camp in Gaza, known as "The Beach Camp" there are almost 100,000 people crammed into a half square kilometer. 

Along the way in this tortured history both sides committed acts of violence. Each side can point to tragedies- innocent children killed or left orphans by the acts of the other side. "Violence begets violence."  The circle must be broken. Israel has the power to kill every single occupant in the Gaza strip where many Palestinians live. They can destroy every building, one at a time, missile by missile. They can destroy the power plants and water plants and plunge the citizens into darkness without food or water. They can, as they appear to be doing, ratchet up the violence until Hamas and the other Palestinian organizations give up. For now. The memory of this defeat, along with their dead, burned into their memories, where it will fester for years until the next Intifada erupts. "Hate begets hate."

The current conflict has several causes; the same way a fire needs several starters. There is a court case to evict six Palestinian families from homes they own in East Jerusalem based on an Israeli law that allows families to reclaim property lost during the division of Jerusalem at the end of the war of 1948 with Jordan.  The Israeli police restricted access at the Damascus Gate of Palestinians to the Old City just as the Muslim Holy month of Ramadan was beginning.  These were the cinders among others that began to burn. 

Israel has the power to break the cycle of violence. Just because they can utterly defeat and destroy their enemies doesn't mean they should. We have seen the horrors of the last century when one group of people set forth  to wipe another off the face of the earth. 

Israel has two choices. They can continue on the same path, responding to attacks with greater attacks until they "win" and the violence ebbs for now. How is that strategy working out? Israel did the exact same thing in the first Intifada that ended in the early 1980s and the second Intifada that began in 2000 and slowly ended in 2005 with over 1000 Israelis and over 3500 Palestinians dead.  If this is the Third Intifada, the death tolls will be worse. The axiom that insanity is doing the same thing over and over and expecting a different result comes to mind. 

So we are at a tipping point. Israel has been attacked again. It has responded with overwhelming force. It can continue to do so. Hamas can continue to shoot off more rockets terrorizing and killing innocent people, or they can try a third way. And to do that, someone has to make the first move. 

Perhaps Israel will say "why should we make the first move? They started it." 

And the simple answer is "because you can." Otherwise when this cycle of violence ends, the dead and the destruction will merely serve as fertilizer for the next round which will surely come. 

Well, the blog has been a bit too quiet. This should liven things up.   

JUDGE ZILBER RESIGNS

 

THE CAPTAIN REPORTS:

Breaking News, as reported by Herald Reporter David Ovalle. 

JUDGE MARTIN ZILBER HAS RESIGNED. 

ADDENDUM:

The resignation is effective as of May 14, 2021 at 5:00 PM. With last month's resignation of Judge Miguel "Mike" Mirabal that now leaves two open seats on the Circuit Court bench one in circuit court and one in county court. Time for the JNC to get to work.

Expect our Governor to end up choosing judges whose resumes includes the initials ASA, AUSA, or AAG. To date, 78 of the 121 judges chosen by DeSantis (a staggering 64%) did in fact have those initials in their backgrounds. Compare that with only 5 that were former APD or AFPD (only two of which were in the public defender's office when chosen).  

Contrast that to the recently released list of nominees from the Biden administration for federal court judges. More than half have worked as a public defender during their careers.

CAPTAIN OUT .......

Captain4justice@gmail.com

WHAT DO FEDERAL COURT AND COUNTY COURT HAVE IN COMMON?

UPDATE: It has been reported that the 11th Circuit has ruled that going forward, all oral arguments will be in person. A hearing. An argument. In court. With three people wearing black robes staring down at you. Imagine that!  

DOM's blog has the news of the new federal magistrate: Melissa Visconti. The appointment has been met with enthusiasm and support. Magistrate Visconti is a former AUSA and clerk for Judge Ungaro. She replaces the retiring Magistrate Judge John O'Sullivan. David posts the quote from Judge Ungaro "No one can be another John O'Sullivan" and truer words were never spoken. A tough but fair AUSA, Judge O'Sullivan, with his plain talking,  streets of Boston accent (not the upper crust Brahmin accent) and cut to the chase handling of even the most complex issues, was a pleasure to practice before. If you argued a case and he was going to rule against you, he told. And he told you why. And he didn't sugarcoat it.  But it wasn't personal. He never demeaned a lawyer, although he might very well eviscerate your argument.  And that was fine with us. You knew where you stood with him. Magistrate Visconti has big shoes to fill. We wish her well. 

Magistrate Judges are many times the unsung heroes of federal court. They do some of the toughest work, slogging through the dense motions to get to the heart of the case. In the EDNY and SDNY we have seen Magistrates elevated to District Court Judges. We haven't seen that in the SDFL. Any reason why? Would anyone say that Magistrate Torres or Magistrate Matthewman would not make great district court judges? 

We have often said that there should be more use of the traffic magistrates in state court. Give them the jurisdiction to handle the cases that clog county court. Do we really need County Court Judges handling NVDL (no valid driver license ) cases? Boating infractions? Snook out of season? The thousands of disorderly conduct, disorderly intox and shoplifting cases should be moved out of county court and sent to traffic magistrates. There are plenty of experienced attorneys who can sit in court and tell a 20 year old why she cannot get drunk and order at Dennys and then run out without paying the bill and sentence her to ten hours of picking up trash or washing floors. Our County Judges don't need their days filled with that. 

Of course once you start that process then in for a penny in for a pound. Take all the possession of cocaine cases and send them to county court, along with the criminal mischief cases and the resisting arrest with violence cases- the county court judges already handle resisting without violence  (which is what? "You're under arrest." "Ha what a joke") 

Anyway we started in federal court and ended up in county court. Which if you think about it, was often a regular day in the life of a criminal defense attorney in Miami (except for DOM. He might start in the 11th circuit and then end up in trial in District Court but there is only so much room in the stratosphere).  Handle an arraignment in Mag court, and then run to the REGJB for that pesky DUI.

 Oh those were the days. 

Anyway, take off your mask if you're vaccinated and enjoy your weekend. 

 

MASKS OFF

 The CDC said if you're fully vaccinated, and if you believe Joe Biden won Nevada and Georgia, then you can go mask-less in-doors and outdoors with some exceptions. You should wear a mask if you are in the health care profession, or if you're attending a 100,000 plus religious rally in India. Other than that, you can now start saying "who was that mask-less woman?" 

EVEREST

If you know Rumpole, then you know we are avid followers of mountaineering. This is the climbing season in Everest. Two climbers lost their lives in the last few days. Both climbers were part of the Seven Summits Treks, an organization that organizes Everest climbs. American Piwei Liu 51,  died this week after making an unsuccessful summit attempt. Abdul Waraich 41, of Switzerland, died after summiting Everest and on the way down. If you know about Everest, then you know that the most dangerous part of the climb is the climb down after summiting. If you haven't summited by early morning and haven't cleared the Hillary Step before noon, you are in grave danger (is there any other kind? Name the movie) of getting caught in a storm and dying on the way down.  

WHAT WE KNOW ABOUT OPENINGS

 We know that after the July 4th weekend the Feds will start trying criminal cases. 

We know that the feds are trying some civil cases now. 

We know the REGJB remains locked. 

Why don't we know when the REGJB will reopen? 

We don't know. 

SPEAK THE TRUTH 

The Republicans are poised to remove the number three in their house leadership on Wednesday. Liz Cheney's crime? She spoke the truth. Congress people who will vote to remove her will be elected members of Congress, many of whom believe 1) the prior president won the election; 2) Dr. Fauci was wrong about masks and is personally profiting from the vaccines; 3) Jewish lasers in space cause fires in California; 4) Hillary Clinton is part of child sex-trafficking ring run out of a pizza shop in DC; 5) Hugo Chavez and Venezuela rigged the US presidential election; 6) Global warming is a fraud; 6) The World Health Organization is part of a conspiracy about Covid19 to weaken the United States.  

Yes they believe this. 

And you wonder why the United States future as a world leader is in doubt. If you were part of the leadership of say, Bulgaria, or Thailand,  who would you cast your lot with? Matt Gaetz  or Xi Jinping? 

In our opinion (widely sought as it is) the Democrats have only one legitimate response- Impeach the former president. 

Again. 

 

DON'T BE TOO DOWN

 Good Monday to you, Let's see....At least nine mass shootings this weekend. Second Amendment baby! How come none of these gun nuts ever show up and shoot the mass shooter? 

India is being overwhelmed with Covid. 300-400 thousand people getting infected every day. But ....you know...it's just like a cold right? No need for masks, or vaccines. Stop over reacting! 

Hmmm is there any good news? 

Wait! Just when you think all is lost, Judge Hirsch sends out a Constitutional Calendar missive and saves the blog and the day!

All rise for the CC...

Justice Brandeis’s concurrence in Ashwander v. TVA, 297 U.S. 288, 341 et. seq. (1936) teaches a lesson that cannot be repeated too often: Courts are not to adjudicate constitutional questions if the actual cases before them can be resolved on sub-constitutional bases, such as statutory or common-law grounds.  The temptation to ignore this lesson – to address constitutional questions first, rather than last – is one to which American judges and lawyers too often succumb.  On May 10, 1952, the prestigious British publication The Economist observed, “[A]t the first sound of a new argument over the United States Constitution and its interpretation the hearts of Americans leap with a fearful joy.  The blood stirs powerfully in their veins and a new lustre brightens their eyes. Like King Harry’s men before Harfleur, they stand like greyhounds in the slips, straining upon the start.” 

We read some more appellate opinions this weekend. When are we going to start talking about doing away with the contemporaneous objection rule? "The defendant was convicted and sentenced to life in prison. When the state compared him to Hitler in closing arguments there was no objection. It is clear the jury did not really think the defendant was Hitler and the error does not rise to fundamental error. We take this opportunity to remind the prosecutor that as much as possible such arguments should be avoided in the future. Comparing defendants to Hitler, Stalin, Bill Cosby. Idi Amin, Saddam Hussein, and Elon Musk serves no purpose in our system of justice. Finding the error was not fundamental we affirm on all counts, wish the defendant well and hope that he can take comfort in our belief the trial was not fair, we all personally feel bad for him, but unless his attorney objects there is nothing we can do. Good luck in prison living without hope. PCA." 

I, STATE YOUR NAME

 It was fun and frivolity at the FACDL swearing in ceremony. No awards this year, although great lawyering was done. 

Judge Milton Hirsch swore in the bored members, with references to large bottles of champagne, and One Hundred Years of Solitude, which is what the last year felt like. Judge Sayfie swore in Kevin Hellmann with a humorous anecdote to her time as an assistant public defender taking over a division run by Margot Moss, CLI. In fact, it just occurred to us that Mr. Hellmann and his wife Ms. Moss have accomplished something even the Clinton's - that equally famous power couple- were unable to do. 

  We crashed the party and took exclusive and never before seen video. 

Yes, at 10 seconds  that is Judge Hirsch, looking like one of the people who raided the Capitol, administering the oath. And yes - the jokesters at FACDL really did say "state your name" after Judge Hirsch told them "repeat after me."

You probably had to be there. 

FACDL SWEARING IN EVENT SATURDAY NIGHT

 It's the second Saturday in May. How could we have missed this? The NEW (and improved) FACDL board will be sworn in Saturday evening. You can watch the event here on Zoom starting at 6:15 PM.

https://us02web.zoom.us/j/9431893869?pwd=bmFxek1FWnlVVVI3a0g3ODUvWVgwQT09

Meeting ID: 943 189 3869
Passcode: 378486

Kevin Hellman, the foremost proponent of "PDMetrics" (evaluating PDs by the number of depos they take, motions they file, cases they try) will be your New FACDL Miami Chapter President. 

From the leaked copies of speeches for this evening: 

"Mr. Speaker, on Friday evening last I received the commission to form a new administration to be conceived on the broadest possible basis...It must be remembered that we are in the preliminary stages of one of the greatest battles of history...I take up my task with bouyancy and hope and I say to you that I have nothing to offer but blood, toil, tears and sweat. We have before us many long months of struggle and suffering. You ask 'what is our policy'? I say it is to wage war by sea, land and air with all our might and with all the strength  that God can give us. To wage war against a monstrous   tyranny never so vast in the dark and lamentable catalogue of human crime. That is our policy. You ask 'what is our aim'? I can answer with one word. Victory! Victory at all costs. Victory in spite of all terror. Victory however long and how hard the road may be.  For without victory there can be no survival." 

Or words to that effect. 

FRANCE INVADED! LOSES GROUND IN INITIAL SKIRMISH

 There are certain things we take for granted in life.  French Laundry in Napa is a mite overrated. The  Miami Clerk's office will fully go to electronic filing "next year". Judges rarely make difficult  decisions without racing to their colleagues for advice- which means a person we don't know and have not argued to is helping decide the case. And France has difficulty protecting her borders. 

In 1819 a large boulder was placed along the 300 plus mile border France shares with Belgium. About a week ago a Belgium farmer moved the stone about ten feet into France to help make way for his tractor to pass. Suddenly, France was smaller than she was when the day began. Luckily cooler heads prevailed (it's not like Germany was involved after all). The Mayors of Erquelinnes (Belgium) and Bousignies-sur-roc met, broke some baguettes and resolved the matter diplomatically. The farmer moved the stone back and some wine was sipped and all returned to normal. 

THE FACDL HAS A STATEMENT:

"Please pay your dues".  Just kidding. Here is the real statement: 

Matthew Meyers	Thu, May 6, 12:31 PM (2 days ago)
to me, captain4justice@gmail.com

Rumpole and Captain,

FACDL-Miami is very pleased there is finally movement to modernize CJIS, the criminal case management system.  This is something we as a chapter, have been pushing for, for years.  It is desperately needed and long overdue.  This could not have been done without both Harvey Ruvin and Chief Judge Soto listening to our needs and implementing changes that will benefit the  community.  I would be remiss if we didn’t extend our deepest gratitude to Chief Judge Soto, Mr. Ruvin, and the Miami-Dade County Commission.  Although we are several years out from the launch of the new system, the fact that the County has allocated the funds necessary is a gigantic step in the right direction.   Kudos to all the FACDL-Miami Presidents before me that have made efforts to get this done. 

Here is our prediction: In 2030 some...just some notice of appearances will be in downloadable pdf format. In 2045 the system "which has experienced some unexpected delays" will be revamped. In 2050, when the REGJB is closed and reopened in a Condo High-rise  on South Beach, the clerk's office will announce that "within two years the computer system will be fully updated and functional. Until then attorneys are requested to file all documents in paper format."  In 2075 the clerk's office will announce "in anticipation of the 2100 change to computer dating formats, the electronic filing system, which has been successfully tested with two! motions to suppress being successfully uploaded, will unfortunately have to be re-coded to comply with the government requirements of 2100. In the meantime, paper filings will be accepted". In 2099, at the Courthouse steps of the dedication of the  new NSJB (Nushin Sayfie Justice Building) which was built in Doral after Hurricane Sydney destroyed most of South Beach in 2077, the clerk of the court will make a stirring speech: "Way back in 2021, during the end of the first pandemic, a group of visionary clerks, judges, and lawyers, envisioned a time in the not too distant future when all documents in Miami Courts could be filed electronically. That day is not far off....we have a new computer system that we expect to install in the next five years...."  

And so it goes. 

TRADE: STUZIN FOR MULTACK

 Trades are a part of baseball. We have one in the judiciary. 

THE REGJB gets Judge Laura Stuzin, bats right, throws right, judges in the middle (we hope) and the Family Division gets Judge Multack. 

Effective Monday, May 10^th, Division 6 will be covered by Judge Laura Stuzin.  Judge Multack will be transferring to the Family Division.  The courtroom, chambers, phone number and VIRTUAL COURTROOM ZOOM ID for division 6 will all remain the same.

 

UPDATE: This is a wonderful comment, unsolicited, but mirrors the things we have heard over the past year. 

 Anonymous said...

Multack has been superb. Efficient, hard working with excellent judgement. Judge Multack and his JA have made practicing during the pandemic easier and that is the highest praise a judge can get for service during a prolonged emergency.

Saturday, May 08, 2021 8:28:00 AM

 

SAY HEY SNP

 Happy 90th Birthday Willie Mays. For those of you (Judge's included) born after Clinton was president (Yes, Hillary has a husband and he was president) WIllie Mays was a baseball player for the NY and LA Giants. He was known as the "say hey kid".  Someone asked us to name a baseball player greater than Mays. Hmmm...  We can find a few (just a few) players who hit more home runs. We can find a few players who were better fielders and had more speed on the base paths  We cannot think of anyone who had the speed, power, and fielding abilities of Mays. He was the best. 

Stats:  Rookie of the year in 1951; 3,283 hits; 660 Home runs; .302 batting average; 1903 RBIs;  338 stolen bases;  .557 slugging percentage;  MVP 1954 and 1965; 12 straight gold gloves as a center fielder; 20 all star appearances-19 in a row; 1954 his first MVP year- .345 batting average (led the majors), 41 home runs, 110 RBIs. It just doesn't get better than this. 

Take a look at what is simply known as "the catch" and while no one was able to identify the DeLuna Dilemma mentioned in the prior post, tell us the batter who hit the ball Mays caught in the first game of the 1954 World Series. 

SCOTLAND 

Voters go to the polls today in Scotland to vote on independence from the United Kingdom. Led by Nicola Sturgeon, Scotland's First Minister (and Rumpole's favourite politician today) Sturgeon is head of the Scottish National Party (SNP) and  hopes to lead Scotland out of the UK and ironically back into the European Union. Many of you are saying to yourselves "Wait a minute Rumpole. Didn't Scotland vote down withdrawing from the UK 55-45 in 2014 and didn't that settle matters?"  Yes and no. A lot has happened since 2014 and we think today's vote will be a historic yes!  

Item: 62% of Scotland's voters voted to REMAIN in the EU. 

Scotland is more enlightened than the UK. It embraces more activism in fighting global warming. We've spent a significant amount of time in Scotland this past decade. There is almost universal recycling; large scale organic production of food; a larger commitment  to health care, immigration, and government support for a universal minimum wage for its citizens. While we don't race to the more socialist aspects of Sturgeon's agenda, it is for the people of Scotland to decide. No one elected us King (yet). 

The withdrawal of Scotland would be a severe blow to the British Empire at a time when change is afoot. The death of Prince Philip. The withdrawal of Prince Harry and Megan from royal duties; a 95 year old Monarch significantly more popular than her son. Scotland could be a tipping point. 

We will follow the voting for you here.  

Happy Birthday to the Say Hey Kid. 

TRULY BREAKING NEWS ...... BUT FOUR MORE YEARS UNTIL WE ACTUALLY GET TO USE IT .......

 

THE CAPTAIN REPORTS:

DID YOU EVER THINK YOU WOULD LIVE TO SEE THE DAY WHEN ..... 

MIAMI-DADE BOARD OF COUNTY COMMISSIONERS APPROVES PROJECT TO IMPLEMENT NEW CRIMINAL CASE MANAGEMENT SYSTEM*

"The Eleventh Judicial Circuit of Florida is pleased to announce that today the Miami-Dade Board of County Commissioners voted to implement a new criminal court case management system for adult and juvenile cases, with a target completion date of 2025. It will replace the County’s aging and paper-based criminal justice system that was developed on mainframe computers 25 years ago." 

"The new system is expected to deliver new efficiencies and cost savings by replacing current manual and paper-based case management processes used by the Miami-Dade Courts and its criminal justice partners such as the Miami-Dade Clerk of Courts, State Attorney’s Office, and Public Defender’s Offices. It will also comply with case management standards established by the Florida Supreme Court. "

"Additional functionalities could be considered in the future, such as traffic and parking violation case management functions. "

“We are very grateful to our County leaders for taking this significant and much-needed step forward in our criminal justice system,” said the Honorable Bertila Soto, Chief Judge of the Miami-Dade Courts. “The new system will vastly improve workflows and efficiency by eliminating manual processes such as having to check separate, incompatible systems for information, and having to manually copy and process paper documents.”

For those of you who have nothing better to do, here is the 296 page Memorandum submitted to the County Commission by Mayor Daniela Cava Levine.  Find it here.

*At a cost of only $32,900,000.

CAPTAIN OUT .......

Captain4Justice@gmail.com

GET TO WORK SLACKERS

 When you are the new kid in school you try to fit in.  Don't make waves.  Advice never accepted by new City of Miami Police Chief Art Acevedo. (Memo to Chief Acevedo- if you wanted to get on our radar, you have done it. Caveat emptor.). 

Chief AA went and done it. He gave an interview to channel 10 (Motto: "No not Fox")  and called out Judge Soto, Carlos Martinez, and Kathy Rundle and told them in no uncertain terms "GET BACK TO WORK SLACKERS!"  Click here to see it. 

Well just hold on cowboy. We do things a bit different here in Miami. For example Chief AA- are you aware of the proud history of your department? Have you googled "River Cops" for fun?  Do you know how many City of Miami Police officers it takes to throw a defendant down a flight of stairs?  None. He slipped and fell.  Are you aware your officers harass and beat up the homeless for fun?  You're complaining about Judges not working? Do you realize how hard it was for a prosecutor before the pandemic to get an officer to show up for trial if s/he wasn't getting OT?  Have you ever heard the term "dropsy?"

Carpet-bagger police chiefs in glass cruisers shouldn't throw stones (especially since a surreptitious night-stick to the kidneys is your department's preferred way of dealing with people who call your officers out). 

Keep criticizing  the courts and the people who work in them- people who built this community while you were busy politicking in Houston (BTW your baseball team cheats), and "defund the police" will seem like a pleasant afternoon. 

Welcome to Miami. 

THE BENEFITS OF THE VACCINE

 The other day we took a wrong turn in Hialeah and were lost. Our GPS showed us to be on SW 4th street, SW 4th avenue, SW 4th way, and NE 298th street. Which is common for Hialeah. But rather than panic, and knowing we had been fully vaccinated, we simply called the CIA  (703-482-0623) and asked them to check our tracker and give us directions home. In a jiffy we were on our way. The benefits of the vaccine. 

Don't Go to NYC:

Chinese space junk - a 21 ton lower stage of a rocket, is in an unpredictable orbit and will soon tumble to earth landing anywhere from an ocean to NYC. Cancel our upcoming reservation at 11 Madison Park. 

Florida Outlaws Vaccine Passports. 

It is important to get a vaccine. Getting a vaccine protects yourself and others. It would be ideal for people who go out into public to be vaccinated. If you don't want a vaccine then you should not be in public where you can get sick and infect others. So naturally, Florida outlawed any business or public establishment requiring a person to be vaccinated to enter. In other words, it is against the law in Florida to require someone to have a vaccine passport. Europe will require it. China will require it. The civilized world will require it. So naturally Florida outlaws it. 

For those of you who believe the owner of a private business like a restaurant or a bookstore has a right to require someone to be vaccinated before entering on the theory that the business is their property and they have the right to serve or not serve anyone they want, just think of this as yet another unintended ramification of Katzenbach v. McClung. 

Maybe Florida got it wrong. Maybe Florida only went half way. Why outlaw passports when outlawing the vaccine is clearly the way to go? And if you're going to outlaw the vaccine then lets ban vaccinated people! That would do the trick. Instead of outlawing vaccine passports, by outlawing vaccinated people from attending any public place- grocery store, restaurant, bowling alley, tattoo parlour, Florida can get to the heart of matter: Covid doesn't kill people; vaccines and Dr. Fauci kills people. 

The Speed of Light

 Do you believe UFOs are alien life forms visiting earth?  (disregard for a moment the inhabitants of  201 SE 6th Street, Ft. Lauderdale, FL). And if so, does that explain the actions of some people on South Beach on any given evening?  "We came 423 light years. What do you mean we cannot get a table at Prime 112 until 10:30 p.m?"   "I'm putting this in valet mode so do not even try to engage the anti-matter warp drive. And careful with scratches when you open the door." 

We would like to believe in UFOs being aliens but we have a few problems. First, how have they solved the distance problem. The nearest planet that could harbor intelligent life - Proxima b (think of the best mixture of Newark and Hialeah) - is 4.2 light years away. A light year is the distance light travels in a year. Light travels 186,000 miles per second, so do the math. It's like uh a long way away dude. And considering our laws of physics do not allow travel at the speed of light, its even farther away. So how are they surviving the trip? 

Second- why are they only revealing themselves to people who live in trailers in North Dakota or Kentucky? Why aren't aliens buzzing Dolphins stadium on opening day?  Why aren't they loading up on McFlurrys and Poke bowls, something we are sure they don't have at home?  

So it doesn't make sense to us. The UFOs aren't aliens, although we believe in alien life. (see the reference to South Beach and 201 SE 6th Street above). 

Rudy G is going Dersh.  The embattled former Mayor/US Attorney/Candidate for President/ Presidential Consigliere/Friend of Ukraine has retained the services of Mr. Markus's former law school prof Alan Dershowitz who immediately compared the subpoena served on Rudy last week to the actions of a 'banana republic" that punishes losers of campaigns. 

Uno momento por favor. The DOJ has been trying to service the subpoena since before the election and then after the election and was reportedly blocked by political appointees of the prior administration in Justice. 

DOM's blog has the Federal JNC conundrum. There are competing JNCs. What is an erstwhile federal judge candidate to do? Apply to both? Apply to none?  It's not a "DeLuna dilemma" (bonus points for anyone who can tell us what that is) but it is a Gordian knot that needs to be unraveled.  If you want to spend your days applying the sophisticated means enhancement (Prosecutor: "The defendant had a cellphone your honor" [muffled gasps of horror  in the courtroom].  Judge:  "I'll increase the guidelines by two in this rare instance where the defendant used a cellphone during the time frame he committed the crime. Gee, you don't see this every day")  then you need to apply some sophisticated diplomacy in figuring out how to get your application into 1600 Pennsylvania Avenue. 

It's May. The Feds are opening up July 6. Broweird is open-ish. Courts across the state are open (many too soon but that is a different story. It would be nice if our Judicial leaders would tell us what they are considering and when  they are considering it.  They do not need to move at the speed of light, but some movement would be nice. Just sayin...

A IS A

 Longtime and careful blog readers know that our admiration for the philosophy of Ayn Rand is her careful attention to  metaphysics and epistemology. In that regard one of the foundations of Ms. Rand's philosophy of Objectivism is the concept advanced by Aristotle: A is A.  What is ...is. A fact is a fact and that cannot be changed by a feeling (unless you're a juror on the receiving end of a Rumpole closing argument). 

This brings us to Justice Gorsuch's decision in Niz-Chavez v. Garland, an Immigration case of all things. The fuss (known in legal terms as a case or controversy) is this- aliens in the US accrue time as "presence in the US"-  which for the government trying to remove the alien is a bad thing; for the alien it is a good thing.  

The real problem is the government's computer systems- they do not talk to each other.

 The statute in question requires the government to send notice of a hearing. The Government does this piecemeal, a notice of the charges in one mailing, a date and time in another mailing because the clerk sending the first notice cannot access the court's calendar for the second notice of a date and time. Under the law, "Notice"-whatever that may be  stops the clock of time accruing in the US- which is the goal of the Government. The government says the second notice is enough. The Petitioner says notice has to be one complete document including charges and time and place to appear and neither the first or second or subsequent mailing is sufficient.   

The question revolves around this: does the term "A notice" in which notice is modified  by "A" mean a singular notice, or can the government do it piecemeal? 

 Here, the government sent Mr. Niz-Chavez one document containing the charges against him. Then, two months later, it sent a second document with the time and place of his hearing. ...The government now concedes the first document isn’t enough to trigger the stop-time rule. Still, the government submits, the second document does the trick. On its view, a “notice to appear” is complete and the stop-time rule kicks in whenever it finishes delivering all the statutorily prescribed information. The government says it needs this kind of flexibility to send information piecemeal. It even suggests it should be allowed to spread the statutorily mandated information over as many documents and as much time as it wishes.

Along the way in this opinion and in the briefs the Dictionary Act (the rare legal concept we were not familiar with) came into play, as did the venerable Chicago Manual  of Style, which has a prominent place on Rumpole's desktop.  A few thoughts before we quote the opinion: Gorsuch is establishing himself as an intellectual heir to Justice Scalia, in common sense, writing ability, statutory interpretation, and (western) conservative values that keep the government in check. We like him on the Court. 

  Almost immediately, these provisions pose the government with a problem. To trigger the stop-time rule, the government must serve “a” notice containing all the information Congress has specified. To an ordinary reader—both in 1996 and today—“a” notice would seem to suggest just that: “a” single document containing the required information, not a mishmash of pieces with some assembly required.

(Or as Aristotle and Ms. Rand said: "A is A"). 

The government submits that §1229(a)(1) defines the term “notice to appear” as “written notice”—and then says it’s obvious “written notice” can come by means of one document or many.

But this argument doesn’t quite track. Section 1229(a)(1) says that “written notice” is “referred to as a ‘notice to appear.’” The singular article “a” thus falls outside the defined term (“notice to appear”) and modifies the entire definition. So even if we were to do exactly as the government suggests and substitute “written notice” for “notice to appear,” the law would still stubbornly require “a” written notice containing all the required information.

 ...

Admittedly, a lot here turns on a small word. In the view of some, too much. The dissent urges us to overlook the fact Congress placed the singular article “a” outside the defined term in §1229(a)(1).

 ...

The government observes, for example, that a writer can publish “a” story serially, or an author may deliver “a” manuscript chapter by chapter. Brief in Opposition 10. The dissent offers its own illustrations, highlighting that “a job application” and “a contract” also can be prepared in parts. Post, at 10. So even if IIRIRA speaks repeatedly of “a” notice to appear, the government and dissent contend, it remains possible that Congress meant to allow that notice to come over time and in pieces. The trouble with this response is that everyone admits language doesn’t always work this way. To build on an illustration we used in Pereira, someone who agrees to buy “a car” would hardly expect to receive the chassis today, wheels next week, and an engine to follow.  (The Justice is obviously not familiar with some of the Miami SW 8th street Car Dealers we have represented over the years in the REGJB whose retainers  have kept us well stocked in the better wines we like to drink at mealtime). 

... 

While you might say “she wrote a manuscript” or “he sent three job applications,” no one would say “she wrote manuscript” or “he sent job application.” See The Chicago Manual of Style §5.7, p. 227 (17th ed. 2017);

 ...

The government resists this conclusion by invoking the Dictionary Act. When reading the U. S. Code, that Act tells us to assume “words importing the singular include and apply to several persons, parties, or things,” unless statutory context indicates otherwise. 1 U. S. C. §1. But this instruction has no application here. The Dictionary Act does not transform every use of the singular “a” into the plural “several.”

 ...

Besides, even viewed in isolation the government’s policy arguments are hardly unassailable. If the government finds filling out forms a chore, it has good company. The world is awash in forms, and rarely do agencies afford individuals the same latitude in completing them that the government seeks for itself today.  (We love this. Just love it. We cannot wait to use it with some obstreperous court clerk someday). 

 ... 

The dissent tries to predict how the government will react to a ruling that requires it to follow the law and then proceeds to assess the resulting “costs” and “benefits.” Post, at 17, 20–21. But that kind of raw consequentialist calculation plays no role in our decision. (This argument we love. How many times does the government in our cases warn judges of the consequences to many cases in their decision in one particular case. Prosecutors across the nation can expect to hear this citation our of Rumpole from now on.)

 ...

At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. (In other words, a lawyer's oratory can, like it was said of Churchill "Marshal the English language and send it into battle").  In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them. The judgment of the Court of Appeals for the Sixth Circuit is Reversed.

The penultimate sentences are good old fashioned Western-US-Rancher-Reasoning. We need more of that on the Court as it pertains to the power of the government. Well done Justice Gorsuch. Well done indeed.