WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM. Winner of the prestigious Cushing Left Anterior Descending Artery Award.

Wednesday, June 30, 2021

COSBY CONVICTION OVERTURNED

 The Juice is loose and now Cos is free. It's Jello Pudding Pops for everyone tonight!

Here is the problem for the rest of the criminal defense bar and criminal defendants: Lawmakers react to these types of cases- the .001% reversals on appeals in notorious cases or when a judge has the temerity to exercise her discretion and not sentence someone to a maximum sentence. That is why we have minimum mandatories. 

A judge sets a reasonable bond on a DUI manslaughter case? The Florida Legislature sets a minimum bond requirement. Ditto for DUI and DUI manslaughter sentences.  

A person gets convicted of second degree murder under the old Florida Guidelines and gets 17 years (the GLs were 17-22- remember when?) and soon there is no difference between first and second degree murder- life with no parole. 

Dr King said the moral arc of the universe bends towards justice. 

The arc of the justice system bends towards the maximum and away from fairness. 

Guidelines exceed the statutory maximum? Guidelines control. 

When was the last time a politician successfully ran on a platform of lowering prison sentences? Other than what POTUS45 did with the First Step Act, there has been no meaningful criminal justice reform that LOWERED penalties and guidelines for the last 100 years. And the First Step act affected how prison sentences are served, not the outrageous drug and fraud -loss guidelines. 

While 99% of criminal defendants (other than those who hire Mr. Markus and his firm) lose their appeal, its the outlier like the Cosby case that gets the media attention. There will be cries for vengeance and outrage over how a "guilty man" won an appeal and cannot be re-tried, with no discussion that he was tricked into confessing by one prosecutor who gave him immunity, and a subsequent prosecutor who did not honor that deal- which was the basis for the Pennsylvania Supreme Court's decision in the Cosby case. 

Talking heads are already on Fox and MSNBC calling for a revamping of the appellate process to prevent guilty defendants from being freed by an appellate court. There will be laws proposed guaranteeing every criminal defendant  the right to appeal, but requiring that their appeals be denied- sort of like North Korea or how the 11th Circuit approaches the fourth amendment. 

Mark our words- this is a dark day for criminal defense. No good will come from the Cos's victory. It will be cited ad nauseam as proof that there are two systems of justice- one for wealthy people and one for everyone else.  Appeals are about to become even harder for the rest of us mere mortals to win (you know who excepted). Scant attention will be paid to the reason Cosby won his appeal - an important ruling on immunity and prosecutors promises. And all of the discussion will be on the women he raped and how bad they feel and how rich people can buy justice. 

This is a dark day for criminal justice- but not for the reasons being discussed on TV. 

DELTA

 As the Delta variant gains a foothold in the United States and begins to capture the attention of the media and public, many lawyers are concerned about the re-opening of court right as the D Variant begins to take hold. Many of those lawyers are emailing your favourite blogger for advice. Which is the correct thing to do. Who do you think gave Fauci advice on how to outlast POTUS45? 

First, if you want to be safe- wear a mask. And get vaccinated. Those two measures will protect you from the D Variant. 

Second, we call upon our new CJ Sayfie (starting July 1- mark your calendars- there may be small fireworks display the following weekend-about three days later- to commemorate her ascension to the CJ spot) to strongly suggest if not require that people wear masks in court. It is the "Safe(ie)" thing to do. 

Third- Judges should allow Zoom appearances for arraignments and reports. Duh. 

Fourth- no sidebars without masks. Do you know where that judge has been? 

Fifth- Stay home and read the blog. You can't start a fire without a spark. You can't get wet if you don't jump into the pool. You can't eat dinner unless you order Uber eats. You get the idea. Limit your public exposure to be safe. And read the blog. 

Tuesday, June 29, 2021

WITHER COUNTY COURT ?

 As fans of the show Mad Men, it has occurred to us that all that County Court needs to open is a good slogan, announcing that the Court, its judges, support staff who make it hum, and the eager -wet-behind-the-ears PDS and ASAs, are all back and raring to go. Thus, as any good writer or trial lawyer is wont to do, we have "borrowed" some slogans (or in the vernacular of Mad Men "tags")  to help Judge Faber's "County-Crew" to get crackin. 

County Court- it's not just on five any more. 

County Court- it's not just a job, it's an adventure. 

County Court- the cure for the common court case. 

County Court- a great place to start your career and your day. 

County Court is open! Plea one DUI, get one free. 

Hey Hey..ho ho...County Court is ready to go!

Misdemeanors and more...come see the NEW County Court. 

County Court...it's morning in Miami again. 

County Court...where the rubber meets the road. 

Take a break from felonies and come to the real "People's Court". 

County Court- serving misdemeanors daily starting at 9 am. 



Once upon a morning dreary, while I pondered, weak and weary,
oh where to park and where to stay
whilst I start my county court day
Over many a quaint and curious volume of forgotten cases law—
While I waited in security lines, nearly napping, 
suddenly there came a tapping,
As of some one gently rapping, rapping at my shoulder near 
I turned and was startled with some fear 
to see a figure dark in black 
robes a flutter, no lawyer hack
saying this and nothing more 
"County Court is ever more"....


Monday, June 28, 2021

(RE) OPENING DAY

UPDATE: From Judges having a party in their chambers (Rebull, which makes perfect sense for a "re"opening) to a bailiff (Vic who works with Judge Milian) who made lasagna for the occasion,  (re)opening day was a great success for Circuit Court, while County Court Judges still zoomed ("it's complicated" is the answer we get most often about County Court).  Judges had big smiles on their faces as lawyers, some with masks and some without strolled into court and handled business for their clients. 

As Rumpole always says- quoting an ancient Native American shaman, "the longest journey begins with the first step.

THE REGJB IS OPEN (mostly, sans County Court) for business. 

The elevators have been revamped. The escalators replaced. The Courtrooms freshly painted with new carpet and furniture. The building is, as we say in sea-faring England, in Bristol fashion. 

This is what is known as literary license. What we do know is the doors were unlocked, weapons screening people were at their station, judges were in courtrooms and the business of criminal law in person began anew. Some people were wearing masks, Some were not. Hint- Rumpole will be wearing a mask. 

As we walk through the valley of post pandemic court, the big question is "wither zoom'? 

We advise to be patient. Some judges love Zoom, some do not. Just like some judges read case law, most do not. But mark our words, zoom, like Ethereum, and some STDS, is here to stay.  

We of course remain the repository for anti-zoom judge stories. "Rumpole, judge XYZ in Broward made me drive up from Key West for a PTI acceptance. She would not let us appear by Zoom." 

Meanwhile, send your opening day pictures, and enjoy life returning back to nornal-ish. 

And once again, See You In Court. 


Thursday, June 24, 2021

MONDAY IS OPENING DAY

UPDATED WITH COUNTY COURT INFORMATION 

Monday is opening day (for circuit court. See below for county court)! Field of Dreams it is not...but how long has it been since you have sat in what we used to call "Cozzolis/The Pickle Barrel/ Au Bon Pain/....El Gordo Cafe..." and had a cup of coffee and pastelito with your favourite judge? 

Monday is the day. June 28, 2021, a date which will live in REGJB history. 

Concerned? Wear a mask. You can. Avoid the elevators, which we always have anyway...ditto black robe wearers at side bar. 

There is a bunch of hoo-ha about each judge having two zoom calendars a week, and the possibility of showing up for an arraignment or doing it by zoom. 

Ignore it for now. Our advice is put on a suit, shine your shoes, and get into court. If you have a continuing and compelling health reason not to go to court, call the Judge's JA. It's been almost sixteen months since JAs have been able to put defense attorneys on interminable hold; they are back and raring for action. When you get though and explain your problem they should be able to help you set up a zoom hearing. And if the judge won't comply....there is always a snappy email to us which will will post and get things moving. 

Lets make this a soft opening. We do not expect a room full of potential jurors, prosecutors making outrageous offers which in turn cause Rumpole to sigh "OK, lets pick six." 

It is going to take some time until things return to normal-normal. But walking in the door. Seeing lawyers lugging files and prosecutors balancing boxes on the escalators will be a sight we have longed to see. 

Send in your pics of opening day to our email and we will post them and cover the festivities. 

REGIB 1 COVID 0. 

We won. We persevered and we out -thought and outlasted our common enemy (covid, not judges). 

We haven't said this in a long long time. But it is worthy of saying now. 

SEE YOU IN COURT!

County Court: In a prior post we speculated that the reason the courthouse was not opening was someone had lost the keys when the REGJB was closed last March. Apparently the keys were found in an old gym bag in the back of a 68 Ford Mustang so the courthouse is now accessible. County Court is NOT opening Monday for in person cases. Do not show up for your Disorderly Intox case; do not pass El Gordo Cafe; Do not collect 200 community service hours.

 Everyone knows county court is more technologically sophisticated than circuit court, with multiple overlapping computer systems using dial up modems where the password used to be "FastGerryKlein"  and the user ID was "FredNesbitt1351". 

The Clerk's office is working diligently to send out notices for county court cases which apparently have a lead time of 6-8 months, so they just cannot open the doors because people with undersize snook cases will not know where to go or what to do and the entire criminal justice system is balancing on the ability of Florida Fish and Game to prosecute those cases. 

Check this site often for county court updates and screeds of the county court chief judge who does not like our mocking of misdemeanor cases. He reacted the last time we did it, and clearly did not understand that when we wrote that a county court judge's time should not be spent on disorderly conduct cases, it was in conjunction with us writing that many felonies should be reduced to misdemeanors so those same judges could handle more serious cases which they are more than capable of doing. But we are often misunderstood, which is a cross we bear lightly. 




Tuesday, June 22, 2021

A RUMPOLE RIDDLE

A RUMPLE RIDDLE ANSWERED 

 What is 

Hard to get into for some people (lawyers)

Easy to get into for other people (defendants)

For the people that it is easy to get into

It is hard to get out of (defendants)

For the people that it is hard to get into

It is easy to get out of (lawyers)

And is 61 years old....????

THE DADE COUNTY JAIL 

IT IS TIME TO REPLACE THE DADE COUNTY JAIL WHICH OPENED IN 1960 

Monday, June 21, 2021

COURT FLAGS NCAA FOR FOUL

 The supreme court in a 9-0 opinion Monday ruled against the NCAA and it's no-pay to play business model, holding that athletes can receive "modest" education related benefits. Justice Gorsuch authored the opinion. But the real meat is in Justice Kavanaugh's concurrence in which he wrote that the NCAA was "not above the law" and that its business model "would be flatly illegal in any other industry in America". In other words, surprisingly, it is illegal in a business monopoly (college athletics) to require employees to work for free. 

Get ready for pay-to-play college athletics. 

In other news, it's real hot out. Like really really hot. But there is no global warming. Drill baby drill. And while you're drilling, don't wear a mask, because like global warming, Covid is a scam. 

That is pretty much the intellectual arguments from approximately one half of the American public, which is why we are receiving EU citizenship. 

COURT reopens Tuesday. Well, reopens in the sense of Zoom. But a real opening is real zoom soon. Like, right around the corner according to some judges. "When exactly?" Rumpole asks. "Like real real soon, we just, uh, need to do some things first." 

Rumpole is beginning to suspect no one has the keys to the REGJB. 

Judge Sayfie: "Who has the damn keys?? Who was the last out of the building in March and locked up?"

( A bunch of judges shuffle around, staring at their feet peaking out from under their robes.)

Stay tuned. Someone might need to call a locksmith, but we are opening up. 

Sunday, June 20, 2021

WHAT JUNETEENTH MEANS

 What Juneteenth means to Rumpole. 

Before this week....nothing. Or almost nothing. Memorial Day holiday would come, and then we would plunge into June, the summer vacation beckoning, the thought perhaps we could squeeze in a trial in June and a motion to suppress in early July before repairing to the Continent or a cool river out West to spend the end of July and August in some place other than the South Florida heat. 

"Juneteenth" would pop up in some internet articles in the last few years. Ask Rumpole in 2010 about Juneteenth or any time before that year and you would be met with a blank stare. 

We will spare you the self congratulatory details on our race based accomplishments. Those are meaningless in light of the cultural blindness one polymath blogger exhibited. 

So what does it mean that we can tell you with excruciating details the actions of the Fourth Infantry division in the Marne in July, 1918, or in Normandy in June 1944, but did not know that it took two years after the Emancipation Proclamation  for slaves in Texas to be free? We can tell you the actions of soldiers of the North and South at the Battle of Antietam, but we did not know until last week that Union General Gordon Granger and his men arrived in Galveston, Texas on June 19, 1885 to tell the population that the war was over and the slaves had been freed. 

In a Country that celebrates freedom and independence from the British,  the celebration of freedom and independence of one set of Americans from another was a complete unknown. 

We are strong because of our ideals. We are stronger and better because we put our mistakes on the front page. From the Pentagon papers to the impeachment of presidents, self introspection and correction makes a democracy stronger. 

What Juneteenth means to one part of America is the celebration of the freedom of their ancestors from the monstrosity of slavery, a concept completely antithetical to a democracy- and yet something that to our great national shame existed and thrived. 

What Juneteenth means to us is the knowledge that we know nothing about the struggles of our fellow Americans.  We do not understand what it means to be the great...(as as many as needed) grandchild of a slave. It is not in our DNA or our cultural awareness. We can write powerfully against racism. We know nothing of what it feels like to be a child of a slave. 

Given the choice of knowledge without an understanding of what we do not know - which may be another way of saying "ignorance" we choose awareness of the  vast array of things we do not know anything about.  

Like Juneteenth. 

Thursday, June 17, 2021

COURTS CLOSED MONDAY

Court's are closed in  Miami Dade County Monday in the first observance of the new federal Juneteenth holiday.  Congress passed the bill Thursday afternoon and President Biden signed it and Judge Soto closed courts...exactly in that order. 

Now that courts are closed, lets talk about courts opening. Lots of Amin  rumors flying around, and we have posted the new 21-1 admin order. Lets take a look. 

THE REGJB OPENS JUNE 28, 2021. Lets gather on the steps and pop champagne! 

TO ZOOM OR NOT TO ZOOM? That is the question. Whether it is nobler in the mind to suffer the slings and arrows of outrageous judicial orders or to take arms against a sea of zoom litigants and by opposing them end zoom. To die- to Zoom no more and by Zoom we say to end the heartache and hassle of driving hours for a five minute hearing ...  

Now it gets tricky. If you have a zoom notice after June 28 you must appear by Zoom even if courts are open. Unless...there are less than two outs and there is a pop fly in the infield that in the judgment of the umpire can be caught and there are runners on first and second or first and second and third. Then the runner is automatically out and you do NOT have to appear by zoom. 

MASKS? You do NOT have to wear a mask. But you should. Variants....

HEARINGS....This is simple. If you have a hearing that is 20 minutes or less but can be done in ten, or you have a hearing that is one hour or less but will probably take longer, or you have indicated that you have a hearing less than 20 minutes but it takes an hour, or you have a civil case on any odd numbered floor...then you should notice the hearing for zoom and you may also appear in person and use zoom on your phone while standing in the hallway, but you cannot show up in court, unless there are less than two outs and two runners on base. See the appendix to the orders for more simple illustrations of this sort. 

Here is what appears to be the guiding principle, taken from the Broward Handbook on how to treat lawyers: "If it would be more convenient and practical to hold a hearing on zoom...the hearing will be live, especially if lawyers are inconvenienced. If it makes a lot of sense to do a hearing in person then the court MAY consider holding the hearing either in zoom or in person with a preference for the Judge ordering the least logical and most inconvenient option so the judge can remember why they worked so hard to become a judge and thus stop having to deal with judges who make everyone else's lives miserable."

Monday, June 14, 2021

GUNS -n- BUTTER

 FIP...rarer letters you will not see. 
Intervention for a gun,
Priors, you better not have even one. 
And even then its no guarantee, 
your client will be accepted into PTD.
You must apply,
then wait and see,
if your client gets...FIP 

From: Don L. Horn <DonLHorn@MiamiSAO.com> 

Subject: Firearm Intervention Program Update, Policies, Criteria and Procedures for Referrals. All Felony Division ASAs Must Read this Email.
Importance: High
Good Day!
We periodically review our diversion programs to ensure that they are effective tools for rehabilitation and to support our duty to protect our community.   To that end, as a result of the large increase in the number of CCF and gun violence cases in our community, we have reviewed the Firearm Intervention Program (hereinafter FIP) and will revert to the initial eligibility criteria for participation in the Program.

As indicated by the increasing number of “Breaking News Alerts” flooding your cell phones and TV screens and the all too frequent headlines from newspapers and other media, the level of gun violence in our communities is sky rocketing.  This result is probably compounded by the staggering increase we are seeing in the number of persons who are walking, driving, cycling, dining, drinking and celebrating while carrying firearms (legally and illegally).  As indicated by the following data, the number of arrests for the charge of Carrying a Concealed Firearm have been climbing: 657 arrests in 2018; 613 arrests in 2019; 738 arrests in 2020 and already 573 arrests for the first 5 months of 2021!  We believe the ready availability and accessibility, and the current proliferation of firearms being possessed (legally and illegally), have contributed to the explosion of gun violence we are witnessing.  Also, our review has revealed that improper cases were being referred to FIP by inexperienced and over-worked ASAs.  As a result of all the above, we are pivoting on our FIP policy and until things change, we will no longer be referring any defendants to the Firearm Diversion Program unless they meet the strict guidelines below.

Although in recent years we expanded the FIP criteria regarding “prior records”, the fact pattern analysis for FIP was never expanded.  We will be reverting to the original policy and rationale for the creation of the Firearm Intervention Program, namely Providing pre-trial diversion for persons who inadvertently are found to be in possession of firearms (usually in their briefcases or luggage going through magnetometers in courthouses or the airport).  Those defendants will also have to meet the stringent requirements below and you will have to follow the procedures below to secure their referral to FIP.  We will NOT be referring defendants to ANY other diversion program for CCF charges.  DCs can no longer offer probation and a gun course and then a vacation of the plea and nolle prosse after 6 months to get around the FIP policy that previously existed.  The fact that you may have difficult caseloads cannot be a reason to use FIP as a case management tool.

No defendant will be referred to FIP unless the ASA handling the case follows these procedures and the defendant meets all of the following criteria:
 Before an ASA attempts to have a defendant considered for FIP, the ASA must first determine that:
  1. The defendant has no prior record, which we interpret to mean the defendant has no prior arrests (regardless of the disposition of the prior arrest(s)).
  2. The CCF must be a stand-alone charge and the gun cannot be stolen.  The defendant can have no accompanying arrest charges, whether filed or no-actioned.
  3. Based on the facts of your case, the carrying of the firearm should/must be unintentional/inadvertent.
  4. If, and only if, you have a defendant who meets all of the above criteria, you must submit a PTI referral form directly to Deputy Chief Assistant Marie Jo Toussaint to have your defendant “considered” for FIP.
  5. An offer to be considered for FIP diversion will be made only after 1) the ASA has submitted to Deputy Chief Toussaint the PTI Referral form, a copy of the defendant’s prior record and the facts of the case ( “A” form);  2) those documents have been reviewed by Deputy Chief Toussaint; and 3) she advises you by email that your case will be submitted to an SAO Investigator.  
  6. The email from Deputy Chief Toussaint will include information for you to provide to the defense attorney (and through him to his client the defendant) advising what is required to be approved. The approval will be contingent upon the investigation and evaluation of the facts by our SAO Investigator, confirmation of the defendant’s lack of a prior record and the result of the interview of the defendant by the SAO Investigator

 For all pending cases, whether still on your pending caseload or presently in the pipeline with Pretrial Services and/or under review by our Investigations Unit, the defendant will be rejected and not accepted into FIP, if the defendant does not meet the above criteria, the defendant does not respond to the Investigator’s call, refuses to provide a sworn statement or if you did not follow the above process.  If you have any questions with regards to the above, please speak to your Chief Assistant or Deputy Chief Assistant or Deputy Chief Toussaint.

Thank you in advance for your cooperation.  Please feel free to forward this email to anyone you believe should have this information.

Friday, June 11, 2021

THE CONCLUSION OF THE LEE BAILEY DEFESE OF DR COPPOLINO

When we last left you, Lee Bailey had objected to the introduction of Dr. Umberger's testimony on the new test he had developed to find the poisonous drug that may have been injected into his wife. 

Bailey asked for voire dire, told the Judge he needed just two questions, and Judge Hirsch said Bailey nailed it with the first question... 

And now, the conclusion of Lee Bailey's defense of Dr. Coppolino as told by Judge Hirsch:  

 Dr. Umberger: Have you published your findings?”


And with that, the Coppolino trial was – or should have been – over.  The answer, of course, was, “No.”  Even before the days of computer research, diligent lawyers were able to go to the periodical-literature section of the library and to determine if the Dr. Umbergers of this world had published anything.  And Dr. Umberger wasn’t about to perjure himself for the sake of convicting Carl Coppolino.

So the case was – or should have been – over.  If Dr. Umberger hadn’t published his findings, then they hadn’t been read and reviewed by the scientific community.  If they hadn’t been read and reviewed by the scientific community, then they couldn’t be generally accepted within the scientific community.  If they weren’t generally accepted within the scientific community, then they weren’t admissible under the then-prevailing Frye standard for novel scientific evidence.  If Umberger’s conclusions about finding the break-down components of succinylcholine chloride didn’t come into evidence, Dr. Halperin never got back on the witness stand to express an opinion about the cause of Mrs. Coppolino’s death.  There would be, in short, exactly zero evidence of death by criminal agency.  (The mysterious Rumpole, by the way, correctly guessed the question.  Whoever that Rumpole guy is – you suppose he’s Roy Black? – he knows trial lawyering.) [Ahem...thank you.]

But Lee Bailey wasn’t done.  He gilded the lily a little.

“Dr.  Umberger: Are you prepared to publish your findings?”  And the answer was: No.  I have no idea how Bailey knew he could get away with that question.  

But Judge Lynn Silvertooth also knew a couple of things, things the jury didn’t know.  He knew that Carl Coppolino had murdered his mistress’s husband in New Jersey, and he knew that Lee Bailey had gotten him an acquittal for that murder.  Now Lee Bailey was asking for, and by rights was entitled to, another acquittal for another murder that Coppolino committed.  

Trial judges are sometimes tempted to slip a thumb onto the scale of justice.  (Not me, but other trial judges are.) Denying Bailey’s motion for judgment of acquittal on a second murder of which Coppolino was certainly guilty was a temptation Judge Silvertooth couldn’t resist. So he denied the well-taken motion for judgment of acquittal, assuring Lee Bailey that he would have ample latitude to cross-examine Drs. Halperin and Umberger before the jury.  

Audentes fortuna iuvat, said Virgil: Fortune favors the bold.  In closing argument, Lee Bailey put that thesis to the test.  He told the jury that there were only two possible verdicts, the judge’s instructions on lesser-included offenses notwithstanding.  Either Carl Coppolino was guilty of first-degree murder and should be punished with death, or he was entirely innocent and should be sent home.  There could be no middle ground.  There could be no compromise.  

It was a stunning gamble.  And in truth Bailey was right.  If Coppolino was guilty, he was guilty of a cold, calculating, first-degree murder.  If he wasn’t guilty of that, he wasn’t guilty of anything.

The jury gave the matter due and deliberate consideration, and returned with a verdict of second-degree murder.  It’s impossible, of course, but that’s the verdict they came back with, and that verdict spared Carl Coppolino a date with Ol’ Sparky.  I’ve tried to figure out what the jurors meant by that verdict, and I can think of only one thing.  It was their way of saying: Your client is guilty as Hell, Mr. Bailey.  But you, sir, are a Hell of a lawyer. 

P.S.  As one of Rumpole's readers seems to know, Judge Lynn Silvertooth was, briefly, Mike Catalano's father-in-law.

Wednesday, June 09, 2021

JUDGE HIRSCH ON LEE BAILEY'S DEFENSE OF DR COPPOLINO

 Judge Hirsch accepted our invitation to write about Lee Bailey's representation of Dr. Coppolino: 


There were actually two Coppolino trials.  The first took place in New Jersey, and Bailey got his client an acquittal.  Let’s skip that one for now (although when we’re having a class of Jack Pommeroy’s Chateau Thames Embankment sometime I’ll be happy to share some of Bailey’s tours de force from that trial).

The medical examiner who testified at the New Jersey trial was Milton Halperin, chief medical examiner for New York City and the self-described “world’s greatest medical detective.”  (Yes, he actually describes himself that way in his autobiography, entitled, Autopsy.  I mention that in case any of your readers were thinking of using that title for their own autobiographies. It’s taken.)  He was furious that Lee Bailey had procured the acquittal of a palpably guilty man, and he was determined to do something about it.  

Coppolino had been living in Florida for some time at that point.  His wife had died in less-than-transparent circumstances.  So Halperin took it upon himself to contact the State Attorney in southwest Florida – it may have been Joe D’Alessandro, or his predecessor – and demanded that he exhume the late Mrs. Coppolino’s remains and send them to him, Halperin, for autopsy.

Halperin’s examination revealed that there was a tiny area of discoloration in what, in life, would have been one of Mrs. Coppolino’s buttocks.  After much consideration, Halperin hypothesized that Coppolino, who was an anaesthesiologist, had injected his wife with succinylcholine chloride, a substance that causes instant and symptomless death and then dissipates into organic components.  The problem, from Halperin’s standpoint, was that there then existed no quantitative analysis for the break-down components of succinylcholine chloride – in other words, no scientific test to determine if there were lethally-elevated levels of those components in the body.

Halperin had on his staff a highly-regarded toxicologist, Dr. Joseph Umberger.  Dr. Halperin took Umberger off all his other cases and ordered him to invent a quantitative test.  In due course Umberger did so.  And applying his test to what was recovered from the body of Mrs. Coppolino, he found deadly levels of the break-down components.  Halperin, delighted, contacted the State Attorney’s Office in Florida, and Coppolino was indicted.  As he had in New Jersey, Lee Bailey represented Coppolino.

Florida in those days was a common-law evidence state.  For an expert to express an opinion, all the facts upon which his opinion was based had to be in evidence.  What the prosecution envisioned, then, was the following: Halperin would testify to his autopsy, but not offer an opinion as to cause of death; he would then step down from the witness stand; Umberger would then testify to his findings and conclusions; at which point Halperin would be able to get back on the witness stand and express the opinion that Mrs. Coppolino had been murdered by the injection of succinylcholine chloride.  (This sounds awkward to us today, but it’s how it was routinely done before the days of the Evidence Code.)

Halperin testified.  Then Umberger was called.  But before his testimony could be elicited, Lee Bailey told Judge Lynn Silvertooth (the current courthouse in Sarasota is named after him) that he had voir dire as to the witness’s testimony.  

Voir dire?  How much voir dire?

Two questions, said Bailey.  

A judge can’t very well turn down a request for two questions-worth of voir dire, so Judge Silvertooth invited Bailey to proceed.  And at the end of the voir dire, the case should have been dismissed.  Truth is, Bailey had it in one.  The second question was just showing off.

Care to guess what the first question was?

We await Judge Hirsch's conclusion to the story. 
You get Roy Black on the Markus federal blog. But we get Judge Hirsch! 

Monday, June 07, 2021

TONSORIAL TURMOIL

 David Ovalle, one of the finest crime reporters in the nation misses nothing. Thus this tweet on breaking news in Miami's historic criminal courts. The Courts which tried Ted Bundy and Giuseppe Zangara  (the putative assassin of Franklin Roosevelt as he toured Miami on Biscayne Boulevard) and many others now faces this uniquely 2021 issue. The news broke today, and while it is not Lee Bailey's cross in the OJ Case, or Roy Black in the William Kennedy Smith case, it merits nonetheless coverage as breaking news. 

Thus this TWEET of Tonsorial Turmoil in Judge De La O's Zoom proceedings today: 

A guy was just shaving his eyebrows during a Zoom hearing in Miami criminal court. Judge de la O said something like "that's a first." If you have a screen shot, hit me up

LEE BAILEY 2.0

 If you haven't done so already, click on over to DOM's blog and read Roy Black's guest post on F. Lee Bailey who passed away last week. 

Mr. Black's post and remembrances are valuable reading.  Lee Bailey along with Edward Bennet Williams (read the biography "The Man to See"), was the first generation of criminal defense attorney superstars (OK Abraham Lincoln, Thurgood Marshall, and others have a place in the early 18th and 19th centuries but Lee Bailey is the first famous criminal defense attorney in the last half of the 20th century). Roy Black came along in the 1970s. As Mr. Black writes, Lee Bailey burst on to the scene in the 1960s with his successful defense of Dr. Sam Sheppard - in his first year out of law school no less. The defense spawned a successful TV series (The Fugitive) and set Bailey on a course of high profiled defense cases, many successful, but none undertaken with anything less than a full fledged fight for his client. None of this "sign and flip" nonsense that so dominates our honourable profession these days, especially in Federal Court. As Mr. Markus is wont to say "You can't win a plea" which surely was in the DNA of Lee Bailey. 

Do not skip lightly over Mr. Black's recommendation to read the book about Lee Bailey's defense of Dr. Carl Coppolino "No Deadly Drug" which he rightly calls the best book on a criminal defense trial he has ever read - and we second that endorsement. We seem to recall a lecture on cross examination or experts  by Judge Milt Hirsch where he recounts Bailey's destruction of a defense expert in the Coppolino case in  two or three questions. Perhaps he will weigh in on that episode. 

And finally there is the insight, said before by Mr. Black- but worth repeating- on his education as one of the finest criminal defense attorneys of his generation. It was Mr. Black's reading and re-reading of the books on Lee Bailey's trials and Bailey's practice treatises that formed and honed his skills- at a time when reading books was the principal way we all educated ourselves. 

Like too  many in our profession, Mr. Bailey came to a sad ending with legal issues, incarceration and disbarment. But those are small postscripts to a career that inspired a generation of criminal defense attorneys to believe that ours is an honourable profession and one worth dedicating a life to. Lee Bailey taught us that there is no case that is not worth defending; no case that is unwinnable; and no client that does not deserve our best efforts. Bailey taught us to not just be in court- but to APPEAR in court. That standing up and saying "Rumpole on behalf of the defense and we are ready for trial" was a moment worth savoring with meaning. That as lawyers we didn't just say something at the beginning of the trial- we DELIVERED an opening statement, carefully planned. That there is nothing better than seeing in the eyes of a witness fear as we rise to cross examine them; that when they shake or hang their head and admit their testimony on direct was not correct and the defense version of the events is what really occurred,  or that the witness's version on direct is not believable, are moments that can be achieved by a well prepared criminal defense attorney. And that "NOT GUILTY" verdicts are not strikes of lightening, but are to be expected and achieved through fearless and dedicated work. 

Go read Mr. Markus's blog and Mr. Black's post and it will start you week off right- even if you wear black robes to work or are a prosecutor. 


Saturday, June 05, 2021

COURTS ARE BACK

 As of June 21, 2021, at 12:01 AM courts in Florida are back baby! 

As per the order of the CJ of the Florida Supreme Court (Motto: "Remember us?") issued last week,  Courts must implement these new procedures starting June 21, 2021, although they have until August 2, 2021 to do so.  Here are the highlights: 

Participants and observers MAY wear a face mask in Court. They do not have to do so (and the Governor is prohibited from doing so); 

Participants may request to be physically distanced from each other. Rumpole routinely stays as far away as possible  from court participants who wear black robes, so this is nothing new to us; 

What about Zoom you ask? The CJ has ruled that CJ's of each circuit must develop procedures for continuing to use Zoom where helpful, so it's up to Judge Nushin "Zoom" Sayfie to implement Miami Zoom procedures; 

Appellate proceedings may be remote or in person as per the CJ of each appellate court; 

Jury selection may be done remotely if everyone agrees; 

Bench trials and other non-jury trials like Parental Termination Hearings can be done remotely if everyone agrees; 

There are a whole bunch of rules on civil cases requiring everyone to try and close the case quickly blah blah blah blah blah...; 

SPEEDY TRIAL is suspended until "the close of business" (whatever that means) on October 4, 2021, for all people taken into custody on or before March 14. 2020 and January 3, 2022 for people taken into custody after March 14, 2020; 

The time remaining in a speedy trial will be determined by the date it is back in existence, minus the time period of the extensions- which is this simple formulae:

x¯=x1+x2++xnn=Σixin

THAT TEN DAY TIME PERIOD under the speedy trial rule to try a case when speedy trial has expired and a valid motion is filed is EXTENDED TO 30 DAYS and even then can be extended because of "crowded dockets",  personnel issues, availability of courtrooms, basically any problem caused by Covid. In other words, if you think you're going to be slick and win a case on a speedy trial motion, the trial judge is going to extend the time period and write "BECAUSE OF COVID" in the order and that will be that.   

So now we are ready; shoes shined; suits hanging in a closet unused for a year; files dusted off. Lets open the REGKB and PICK SIX (while socially distancing from you know who)!