A 15 year old Sophomore student brought a gun to school today and killed three students and wounded six others.
But...guns don't kill people... students in school kill people.
DOM is headed to the 11th Circuit to argue the issues surrounding the Pandemic and the statute of limitations. It's the arcane minutiae that some lawyers- and according to the post here- judges are drawn to. There is apparently a split in our district as to whether prosecutors can just extend the SOL six months because they are wearing a mask at work. [*cough..*cough]. Our response to SOL issues is just to shine our shoes and pick twelve and be done with it. But that's why he's a better defense attorney than we are. Sort of.
We are in the run up to the end of year pause, jury trials wise. If you're not in trial this week or next, then, relax. If you have followed our tried and true advice then you have a trial and a bunch of sentencings set for the week of December 20. Ho Ho Ho.
No word on Omicron issues. More virulent? Causes more severe disease? Not sure yet. Will the vaccines work? Yes, but no word on how effective they are.
We were just wondering the other day how many of our amateur Covid vaccine scientists did prior research on antibiotics or even Tylenol before they took a pill when they were sick. Didn't hear much discussion about that, or even chemotherapy if some of them were diagnosed with cancer.
Meanwhile, a Miss Universe contestant has tested positive for Covid19 in Israel. They still have that contest in these days of #metoo? Count us as surprised.
Get vaccinated. Get your booster. Bill Gates needs to know where you are at all times and he cannot do that with video surveillance because too many people are wearing masks.
Stay safe. Don't go to court.
We are down to three in the thrilling REGJB Survivor Pool- Retired Judge Jon Colby, Clay Kaeiser, and Fake Freddy Moldovan. Colby is taking the Ravens, CK is taking the Patriots and FFM is taking the 49ers, which means we could have a survivor today.
In honor of the final three, we will pick those games.
CK likes the Cheaters, who are minus 5.5 at home and have a surprising winning streak and are in first place of the AFC east. While we think many teams return to the mean, the Patriots are clicking, are at home, and the Titans are missing their beast MVP running back. While we like the Belichicks to win this one, we'll take the Titans and the points.
FFM is counting on the home town 49ers to San Fran the streaking Vikings. This is a hot passer (Vikes QB Cousins) who hasn't tossed an INT in five games against a good 49er pass defense. We will take the D over the O, plus, while Minny wins, they don't win big. Take San Fran and give the standard home town three.
Colby thinks the Ravens will fly over the Browns. We agree. We will also lay the 3.5 for the home town Birds who are happy, like all fowl, that Thanksgiving is over.
You know what will be a good game? Carolina and Cam against our Fins. Miami is a home town dog. -1. We'll take the point and the under 42.
Omicron is -10 over Delta. Give the points. This guy is lightening fast and tricky in the open field, defeating the defenses of most of Europe, and showing up now in the Netherlands, Hong Kong and Italy. It's already in the US. You can bank on that. Get your booster. Wear your mask. And stay home if you can.
Here's what we know about the new variant. It is highly transmissible. It has over thirty changes to the spike protein of the Covid virus, which potentially makes it more infectious and perhaps less resistant to a vaccine. By contrast, the Delta Variant had two changes to the spike protein.
Omicron has been detected in people in England, Germany, Italy, and India. Most EU countries and the US have announced travel restrictions on people coming from Africa. Israel locked down, prohibiting any foreigners from entering the country. By this time next week, if not sooner, you will be reading about Omicron cases in the US. We have an interconnected world. Other than sealing the boarders- which isn't a bad idea for two weeks- Omicron will be here, if it isn't here already (and it probably is).
The good news is that vaccine companies have said they can change their MRNA vaccines within 100 days to block the new spike proteins on the new variant. The CDC is also conducting tests to see how effective the current vaccines are. There is no proof at the moment that the current vaccines do not stop Omicron- especially since the tracking chip the vaccines implant allow Microsoft to track vaccinated people, including those in Africa.
Here's what we are calling on Chief Judges Sayfie and Altonaga to do: Require everyone who enters a courthouse in Dade County to show proof of vaccine and to wear a mask. People have the option of showing up on zoom if needed. We once again remind you- if a judge can order us to wear a jacket and tie in August, if a judge can revoke a bond or deny bond on a new arrest, a judge can require people to wear masks in court. They might not be able to make someone get a vaccine, but they can deny entry to anyone who doesn't want the Gates/Fauci/Trilateral Commission chip in their body.
Omicron could be nothing more than Delta on steroids. Or it could be a lot worse. We do not think it is worth risking anyone's health to find out. Stop jury trials for misdemeanors until the end of the year. Quite frankly stop all trials until the first week of January.
We will know more in a few weeks. Why risk it?
Because of our anti-Happy-Thanksgiving-rant earlier this week, we cannot send such felicitous thoughts at this time. But can take stock of all we are grateful for. Starting with the important and ending with the sublime.
If you peruse our Great Jail Adventure post yesterday, it may become apparent that before heading out to the jail, we were actually in the Old Gray Lady (The REGJB) and went inside a courtroom for the bond hearing. We walked into several courtrooms and this is what we saw: Judges in Masks, PDs and ASAs (mostly maskless); clerks; corrections officers, bailiffs, and all of the people needed to run a court calendar and run a court system. We are grateful for all of you. In the face of a pandemic, you marched into court and kept the system running, at personal risk to your health and life. Thank You. And while we are at it- you twenty something prosecutors and PDs who feel the invincibility of youth- you're not. Wear a mask please.
Second, we are grateful for the opportunity to blog. We couldn't do it if this was Beijing. The equivalent of Chief Judge Soto and now Sayfie would have had us arrested and sent to a reeducation camp. Instead, because of the First Amendment, our chief judges, our administrative judges, our judges, endured the slings and arrows of the blog with public grace. True, we've been dressed down privately in scathing emails from a certain Judge - but it was mostly deserved and we reached a detente.
We are grateful for our health. "Good health...the most important thing." (identify the movie quote for valuable prizes).
About ten days ago we walked into a medical facility and got a booster shot. It took all of thirty minutes with a reservation, including observation time. We are grateful to live in a country that protects intellectual property rights and rewards innovation. This is why we had scientists who had the knowledge and skill to develop a vaccine. Want the Pfizer or Moderna or the one from Russia or China? Moderna please we said, and we got it (get the full dose BTW).
We are grateful for Hulu TV which we discovered during the pandemic. If not for the NFL ticket, we would cut the cord on cable.
We are grateful for our Kindle. We can read whatever we want where ever we are. If you like to read, get one. Trust us. You won't miss the feel of books and the ability to manipulate the font and lighting makes reading so much easier.
We are grateful for our barista at our local Starbucks, who five days a week has our favourite drink ready for us when we walk in. Just the right amount of espresso and coconut milk and shots of vanilla and she even knows that on Friday, just to mix things up, we want it on ice. She was out sick one day and called a colleague to have our drink ready. You don't see that attention to customers much these days.
In no particular order, we are grateful for home baked crusty bread, the coffee and croissants at the Pierre in Manhattan that they bring to our room every morning, our Peloton, the Bills getting beat last week, the series the Kominsky Method on Netflix- Alan Arkin is brilliant and the most underrated comedic actor of his generation, the Noability App on our iPad, which makes reading discovery a breeze, a certain recent opinion in the First, and last, but not least, a majority of our readers, who make writing the blog a fulfilling experience.
Happy You Know What.
We often hear incarcerated clients complain to judges that their lawyers never see them. We often see Judges tell lawyers to go see their clients in jail, like it's a visit to McDonalds. It is not.
And so it came to pass that even Rumpole was unable (for the moment) to secure bond for a client and was forced to do something that we have not done in well over two years- trudge to the Dade County Jail. which BTW is known at PTD or the Pre Trial Detention Center- and go visit a client.
A staff member called the jail. Unlike 11 Madison Park in Manhattan, or Nobu, no reservations needed. Just come on in. So we went, and thus entered the black hole of time trying to see a client in jail.
We waited in line outside while various food vendors and corrections officers carrying sacks full of fast food lined up to be screened. Important tip- don't go to the jail over lunch hour when trillions of calories are trucked in.
We were screened and then had to surrender our DL because we did not have a quarter for the locker. We traded out DL for a locker key. Then the officer asked if we were seeing the person on video- because if we were we needed to go around the corner. "No video for us" we said through our N95 mask. She just chuckled. We- who take such pride in reading the slightest twitch of a witness on the stand- ignored the signs. We know better.
We went to the front desk and secured the comforting sight of a pink slip. Wrote in the jail number and location slipped our bar card and ID to the woman. "You want to see him on video right?"
"No thank you. In person please."
Well that caused a serious problem. A lot of huddling, pointing at us, more huddling, someone coming to the window to speak with us, and then taking a ten minute phone call while we stood there, and more huddling and then a sergeant: "You want to see him on video, right?"
"No sir. In person please."
"Hmmm....wait here." More calls. More huddling. Another supervisor. "I am advising you that the best thing to do is to see your client on video. If you just walk around the corner there is a video set up and I'll have him brought to the video room."
We surrendered. It had been an hour. We had things to do.
We walked around the corner to behind the PDs office and went to a window. We peered inside. It was an enormous dark room. About thirty feet away sat two corrections officers with their backs to us, facing an array of video machines. It was like the set up the NSA and Bill Gates have to track people who have been vaccinated for Covid. High tech. Well high tech except that with the three feet of bullet proof glass, and no one sitting at the window, and the two officers with their backs to us, we had no way of getting their attention.
Twenty minutes later back to PTD. Back to the screening. Back to surrendering our ID because we still didn't have a quarter. Back to the window, where we told the woman our problem with the video. "Oh, no problem, Go back. I'll call them. Back to the locker. Back to getting our ID. Back out the door, Back down the street. Back to the window. Now there was only one officer, and she was facing the screens. It was not our day. Twenty minutes later an officer came into the Miami branch of the Gates/NSA/Covid tracking center and saw us. We handed them the slip.
"Do you have an account?"
"Ummm....I do not think so."
Off she went to a computer to confer with Bill Gates. Back she came fifteen minutes later. "You do have an account, but this inmate is not on your list."
"Well, that makes sense. He was just arrested."
"No problem. I'll just add him."
She went to the computers. A supervisor came over. They huddled and pointed at me a few times. More conferring. More entering of Data. Perhaps they were concerned about when we were recently in NYC and ate Dim Sum in Chinatown according to their vaccine tracking data.
They came back to us. "The computer will not let us add him to your account. Go back to the jail."
Back down the street. Back to the jail. Back to the line. Back to being screened. Back to giving them our DL because we didn't have a quarter. Back to the window with the now wrinkled pink slip.
Corrections Officer: "We are going to bring him down so you can see him."
Corrections Officer: "Umm can you come back in 90 minutes? We have shift change now."
Back to our car. Did you know there is no Starbucks nearby the REGJB? We drove to Biscayne Boulevard and secured some coffee. Time elapsed so far: three hours, twenty minutes. Back to the courthouse. Park. Back to the jail. Back to the line. Back to being screened. Still no quarter (we love the Starbucks app and have over a hundred stars). Back to the locker. Back to the front window. A new officer is there. We hand her the slip: "Ummm.... you want to see him on video right?"
Post Script. The story you have read is 100% true. It took us over five hours to see our client in the Dade County Jail. Almost every officer we dealt with was polite and helpful. There is just a bureaucracy and significant hurdles in seeing a client in jail. Imagine if we had a two week trial to prepare for and had to do this every day for trial prep.
So we say to our robed readers, especially the ones fond of pontificating how when they were in private practice they saw every client in jail every day and tried every case at the first trial setting- that the next time you wonder why the lawyer in front of you is being too lazy to spend a half hour with her client in jail, it is because at this point in time it is probably easier to be a Chinese spy trying to get into Mar A Lago, then it is to get into a jail and see a client.
This is the time of year when lawyers and businesses, apparently with nothing better to do, feel compelled to clog our email in-boxes with a happy thanksgiving message. It's even worse if they include a picture of a turkey in a Pilgrim's hat.
Let us tell you what does not occur: A family gathered around a Thanksgiving table, about to eat and give Thanks for the Cowboys covering the spread- when someone says "Wait! We cannot start until we checked the email and received the Happy Thanksgiving email from Dewey Cheetum and Howe!"
"Dewey Cheetum and Howe. You know, those lawyers who did our closing and then sued the roofer for us."
"Oh yeah. You're right. It's just not a Thanksgiving until they send us a "Happy Thanksgiving email. I love the turkey dressed up as a Pilgrim."
SO PLEASE. NO HAPPY THANKSGIVING EMAILS. No other happy holiday emails. We do not need your email to celebrate Chanukah, St. Patrick's Day, or Veteran's Day or Boxing Day or Ramadan.
Nobody thinks "Isn't that nice. Retired Judge XYZ sent a nice holiday email. Apparently they have a mediation business opening."
We have enough emails to respond to. We do not need your best wishes. We do not need to know that the "gang at the Florida Filing Portal" is thinking of us on Christmas. They are not thinking of us. They do not even know us. Neither does 99% of the idiots sending us holiday emails.
So just stop it. Do not send that email. We will erase it before we read as will everyone who has half a brain. Granted, Judges sitting in empty courtrooms on the Wednesday before Thanksgiving may spend an enjoyable hour thumbing through emails...but look at your audience.
SO NO HAPPY THANKSGIVING FROM YOUR FAVOURITE BLOG
We could not post before 1pm, so here is who we like in the late games Sunday and MNF. But first the survivor pool in which last week saw two players (Colby and Kaeiser) pick the Steelers who tied with the Lions. After the disputes of a few years ago on ties were resolved, see Fake Alex Michaels v. JBB Survivor pool, it was decided that the team you pick needs to LOSE for you to be out of the pool. The reasoning in the concurrence was persuasive: "Under the defendant's theory of needing to win to survive, a player who picked a team in which the game was canceled would be eliminated from the survivor pool because the team they picked did not win the game. Since that is not a result anyone would countenance, the logical result is that survivor pools count losses and not wins. Thus a tie not being a loss, the player survives."
Markus and Freedman: Titans; Fake Freddy Moldovan: Eagles; Clay Kaeiser: Bucs; Colby: Browns.
Meanwhile as we write this the Titans are losing 12-0 to the Texans at the start of the 3rd Q, jeopardizing Mr. Markus and Rick Freedman.
KC -2.5 against the Cowpokes; Seahawks +2.5 against the Cardinals; Bengals -1 in Vegas.
There will be fallout from the Kyle Rittenhouse verdict, mark our words. Criminal law in the United States is shaped not by well thought out policy and initiatives, but public opinion. Why do we have minimum mandatories for crimes? Think about it. A person has been convicted or pled to a crime and presumably the judge has the job of sentencing. Why take the job away from them? Because of public criticism of a judicial action. We have minimum mandatory crimes because of public criticism of a judge exercising her discretion in the 1980's on a sentencing which caused an outrage. "The Judge let em go" people cried. And the legislature responded. Never mind that 99.9999% of the public didn't know the reasons behind the exercise of judicial discretion. The point is some defendant got a low sentence for a murder or a drug case and WHAMMO a minimum mandatory was born.
We now have minimum mandatories for bond, again because in some DUI Manslaughter case the public reacted to a defendant bonding out. We can probably get a defendant out of jail quicker on a kilo of cocaine case then if she is charged with throwing a piece of tinfoil at her boyfriend because that case is...(cue ominous music) A DOMESTIC VIOLENCE CASE dum dum da dum. And domestic violence is bad and must be punished, even pre-determination of guilt.
Which brings us to the Rittenhouse verdict. From what we saw, the verdict was supported by the evidence or lack thereof. But we were not in the courtroom. Neither were all of the people on MSNBC decrying the verdict as racial injustice-although all of the parties- the deceased and injured and the defendant were white. Rittenhouse ran into a social protest and somehow ended up shooting three people and killing two and that must be wrong AND WE CANNOT LET THAT HAPPEN AGAIN.
So there will be a fallout. What will it be? Well first we all know it is nearly impossible to prepare a good defense with a client in custody, so there will probably be the Rittenhouse Bail Reform Act which will deny release to any person accused of using a gun in which more than one person is shot.
Next will be the Rittenhouse Burden of Proof Act which which instruct a jury that in cases where a person is accused of shooting during a public protest the jury must ASSUME the defendant did not act in self defense and can only acquit the defendant if the defense proves "well beyond any possible doubt that s/he had no choice to do anything other than fire their weapon. Simple proof beyond a reasonable doubt will not be sufficient to acquit the defendant."
The division in the American public goes well beyond Red State/Blue State. It reaches deep into the criminal justice system. And for each case in which there is a verdict that one portion of the country does not support, there will be attempts to reform the criminal justice system to prevent such "injustices from occurring again."
We do not want to get too deep into this, but this brings us to the actions of the Defense Attorney Kevin Gough in the other case being watched- the killing of Ahmaud Arbery. The racial lines in this case are clear- white men are on trial for the killing of a black man who they saw running through their neighborhood. Our sympathies do not lie with the defense in this case, unlike the Rittenhouse case. But we write about Gough's ham handed attempt to ban "black preachers" from the audience of the courtroom.
The openness of courtrooms has always been an issue with us. We have gone after judges and staff who have attempted to ban family and friends from courtrooms in the name of order or space. A courtroom in the United States is open - period, unless the rules to close the courtroom are followed and then Mr. Ovalle and his Miami Herald legal team spring into action.
But while Gough is wrong, and went about it as about as wrong as possible, he has a point. We have defended clients accused of violence against law enforcement officers (Q: Officer, how did our client end up with two black eyes and a broken nose? A: When he scratched my pinkie, and realized he had committed a crime, he became so distraught that he began banging his head against the bars of the cell repeatedly"). And we have sat in courtrooms where a sea of uniformed officers sat in audience in an attempt to influence the jury. And we have complained to the Broward Judge, only to see the judge order their staff to set up more chairs for police officers while our client's family had to sit in the hallway (true story. And after our client was acquitted, the judge revoked his bond and took him into custody "for a records check").
Our point is no one should be banned from a courtroom. But what Mr. Gough was trying to do was protect his client. He was wrong. But his intentions were good - which of course triggers the "road to hell is paved with good intentions" aphorism.
That's a lot to chew on. Have at it.
And BTW why when a client is acquitted does a judge have to do anything else? In Florida they "find and adjudicate the defendant not guilty after the jury has found our client not guilty. In Wisconsin the judge dismissed the case with prejudice. Why is the jury's acquittal not enough?
Miami Lawyer Bruce Jacobs, known for his "Alex Michaels" way of litigating foreclosure defense cases, received a recommendation from County Court Judge Betsy Zane-Alvarez that he be suspended for three months and receive two years of probation. The recommendation is a clear win for Jacobs and his lawyers Ben Kuehne and Roy Wasson as the Bar had sought a multi-year suspension for the controversial lawyer.
Jacobs was facing three complaints- two from the Third DCA (Motto "Be NICE...to us") and one from Civil Judge Michael Hanzman who filed his complaint with the Bar while the two Third DCA complaints were already being litigated: “In sum, Mr. Jacobs is unrepentant, undeterred, and continues to engage in the exact same behavior he was sanctioned for and which is now presumably being investigated by the bar.” (Rumpole practice tip: Don't F with Judge Hanzman).
Jacobs made a multitude of disparaging comments about our beloved Third DCA, including allegations that the Third DCA ignored Florida Supreme Court precedent, violated standards of review, and that its decisions were so antithetical to the Constitution as to be traitorous and could constitute treason (but he did say the coffee in the attorney lounge at the Third was decent).
The Rumanian Mumble it is not, see Michaels v. Loftus, 139 So. 3d 324, 327–28 (Fla. 3d DCA 2014) (The Romanian Mumble: Mr. ' use of foul language, however, is another matter. On this charge, Mr. admitted that while extending his hand toward Mr. Von Zamft, he mumbled the words “futos gutos monte” at him. Tr. 97. The trial court immediately knew or gleaned from Mr. ' scornfulness that the words meant “F* *k You.” Mr. confirmed the trial judge's interpretation of the words during colloquy at the contempt hearing held a few hours later.)
But as you can see from Judge Alvarez-Zane's painstakingly detailed order, Jacobs said and wrote a lot of stuff lawyers who aren't alleging election fraud shouldn't say.
So here is the big question: Will the Florida Supreme Court affirm the punishment or will they increase it?
Day three of jury deliberations in the Wisconsin Kyle Rittenhouse murder trial. This has been a fascinating case. The Judge is a real character, known as tough on the prosecution during trial, and for handing out tough sentences.
The defendant is an enigma. He has a baby face. And yet he ran into a nasty mob situation that was not his community, with an AR17 as a seventeen year old. From the spectacular defense we have seen, it does appear he was threatened by the people he shot. And yet...he shot three people and killed two. It would seem to us that a complete acquittal would be hard for any jury to do. But murder charges seem inappropriate.
The latest issue is what we in Florida would call a discovery violation necessitating a Richardson hearing. The prosecution introduced a drone video that shows Rittenhouse chasing one of the deceased before shooting him. The prosecution did disclose the video, but not a more prejudicial high-def version that the defense did not see until two days before closing. Another motion for mistrial was filed.
Meanwhile Wisconsin has a policy of picking the regular and alternate jurors from a barrel that has all the jurors names in it, after closings. And the Judge in this case has had a policy of letting the defendant pluck the names instead of a clerk. Just another quirk from a common sense, but quirky judge, who told everyone that he thinks defendants feel better when they have a measure of control over their case.
Today is Thursday. Remember Rumpole's first rule of trials: AVOID FRIDAY VERDICTS!
We will be monitoring the case throughout the day as we pound out motions and appellate briefs.
Thank you for all the (mostly) kind blog birthday wishes. And the cake was totally unnecessary but delicious.
It all started sixteen years ago today in 2005. Just a neophyte blogger, who was a superb writer and was and is a successful criminal defense lawyer who decided to blog on one of the most fascinating subjects we could imagine: the stories and people of the REGJB.
Here is our welcome post from November 16, 2005:
Welcome to the Justice Building Blog.
My Name is Horace Rumpole.
We seek comments, rumors, and stories on any and all Miami Justice Building habituates, Judges, Prosecutors, Attorneys, and defendants. While we (the royal we) will not be libelous, and we will not pick on those not able to defend themselves [ insert your favorite judge here] , we love a good story about a Judge or lawyer putting his or her foot in their mouth. A juicy rumor that is not too harmful will also be posted.
The writing at first was a bit awkward; it took time for us to find our groove. We were surprised along the way as well. For example the blog became a place to mourn friends who departed. Family members wrote us, telling us they took comfort in the many memories posted about their loved ones.
We've scooped the Herald from time to time, although we are most certainly not well trained reporters. We skewered arrogant and mean Broward Judges, and took pleasure doing so. Still do. We've taken down a judge, shocked at the level of racism that populated his language and chambers.
Along the way we became a small part of the Miami Legal Community, known simply as "The Blog". "Did you see what is on the blog today?" became a refrain we heard countless times in the halls of the REGJB. And that made us proud.
But mostly we have had a whole lot of fun and enjoyment writing about the people and clients who populate a building that has been a central figure in our life.
This is our 4,558th Post! Thank you dear readers for logging on and reading.
H, Rumpole, Esq., Blog Proprietor.
Luck is the residue of design. You get a great cross when you are prepared and your opponent is not.
We have come across some remarkable cross examination in the Rittenhouse trial. The prosecutor called the one witness who was shot and survived. He was a paramedic. The prosecutor takes the witness through his encounter with Rittenhouse. The witness testifies that when Rittenhouse pointed his gun at him he raised his hands. He also testifies about Rittenhouse racking his weapon, which the witness testifies was an indication that Rittenhouse was preparing his weapon to fire again.
We candidly admit we have not seen the entire direct and therefore our criticism of the prosecution may not be fully correct. But what comes out on cross examination is both shocking and devastating to the prosecution.
The witness chased Rittenhouse down the street. And while there was an encounter when Rittenhouse pointed his gun at the witness and the witness raised his hands, Rittenhouse only shot the witness WHEN THE WITNESS LOWERED HIS HANDS, PRODUCED HIS OWN HANDGUN AND AIMED IT AT RITTENHOUSE.
It is a shocking moment, and a moment of cross examination not many lawyers ever get. What we do not know is whether the prosecution brought these facts out on cross examination. The video clip we have seen is clearly edited and it is just not clear what the jury knew before cross examination.
But the direct is fairly powerful for the prosecution...until cross examination began, which shows the power of cross examination and the reason for cross examination in our system.
Of course sometimes your opponent does your work for you. The prosecutor called a witness who saw Rittenhouse shoot and kill Joseph Rosenbaum. The witness, a videographer, was clearly a hostile witness. There came a point when the prosecutor pushed the witness to admit he had no idea what Rosembaum was thinking when he grabbed Rittenhouse's gun before Rittenhouse shot and killed him. To which the witness responded: "Well, he said fuck you and then grabbed the gun."
Saturday was Happy November 13th day! One of the most significant and monumental days in American history. We are spending it today recovering from our celebration last night (as we usually do, although we had a Covid interruption last year) at a party at 1049 Park Avenue, the historic residence at the center of this great day.
November 13 was the day, as most know, when Felix Unger was asked to remove himself from his residence with a request that came from his wife. With the snippet of surviving video, we see a despondent Unger leaving his apartment with some luggage. A moment later he is handed a frying pan. Unger is later seen sitting forlornly on his luggage on a rainy Manhattan street, before he shows up at the home of his childhood friend Oscar Madison, who is seen reaching into his pocket, presumably to hand Unger a key, as Madison was known to always be short of money. Several years earlier Madison's wife had thrown him out of their marital abode. With Felix Unger moving in, Unger and Madison confronted the existential problem of the 1970's- can two divorced men live together without driving each other crazy?
Before we begin our picks and discussion, we note that the great Sam Huff, hall of fame middle linebacker for multiple NY Giant championship teams in the 1950's and 60's died at 87 on Saturday. Sam Huff was indeed the man in the middle: "If you had the football I was going to hit you and I tried to hit you hard enough to hurt you. That's the way the game should be played."
Your Miami Dolphins drove the Ravens crazy in Miami-Gardens this past Thursday, posting an upset win of the double-digit-favored Ravens.
There's a lot of +10 point spreads this week that we are shying away from. We like the Pack with Rodgers back over the visiting Seahawks with Russell Wilson back, - 4, so long as Rodgers plays.
While we like the J...E...T....S Mike White's Jets Jets Jets +13 at home, we also like the over 47.5 against the struggling Bills.
We like the Chargers at home -2.5 to bounce back against the inconsistent Vikings.
Speaking of bounce backs, KC giving 2.5 to the Raiders in Vegas is also a decent pick.
SURVIVOR POOL UPDATE: WE HAD A TIE TODAY IN THE STEELER/LIONS GAME. A TIE IS NOT A LOSS. COLBY AND KAEISER SURVIVE.
Fake Freddy and Rick Freedman: Colts; Mr. Markus: Dallas; Colby & Kaeiser: Steelers.
Happy November 13th!
We had to postpone our second Friday post due to the untimely indictment of a client.
In this NY Times article details the book Larry Miller, former Portland Trail Blazers president, and current Nike Executive, has written. In the book, Miller confesses to the 1965 murder of 18 year old David White. Mr. Miller was a sixteen year old gang member at the time of the murder.
A few thoughts. First, cannot Mr. Miller still be prosecuted for this now-solved murder?
And second, doesn't the life Mr. Miller led since the killing call into question the current state of criminal justice and the "life-without-parole" sentences? Shouldn't there be room for redemption in criminal justice? Or are prosecutors and judges looking at this, shaking with anger for all that Mr. Miller got to do instead of being sent to the gulag-USA for his crime?
Two million people in Europe were diagnosed with Covid last week. Europe's winter surge is upon the Continent, and we are whistling past a graveyard if we think we are not about 3-4 weeks behind Europe.
But don't make people wear masks in Court because the Supreme Court said you couldn't.
The US Supreme Court also issued Buck v. Bell, Wickard v. Fliburn, and Plessy v. Ferguson, but no one has the courage to go against wrong rulings.
This is the first of two posts today. So check back often as we will be dissecting a video of direct and cross examination and you do NOT want to miss that.
"Masks are dangerous" said doctor Christopher Foley, MD. To combat COVID he advocated Vitamin D and Ivermectin, a horse-antibiotic. Dr. Foley eschewed vaccines, (he himself was not vaccinated) and espoused homeopathy, a medical treatment philosophy using microscopic doses of something to help the body create natural resistance (sort of like a vaccine, except the dose was so small, it was mostly undetectable).
Dr. Foley called the vaccines "human experiments" and criticized the lockdown as harmful to business and children. He called masks "downright dangerous, especially when worn for extended periods of time."
Well, there is danger. Danger in believing people like Dr. Foley, who passed away this week from Covid19.
Dr. Foley had every right to be stupid and sacrifice his life and leave his family without a father and husband which he did. But he abused his position as a doctor in making claims that were dangerous and false. It's not that he paid for his stupidity with his life. As an Objectivist, we believe he had a right to do so. It is that he most likely killed many other people who followed his advice as an MD. There are other families without loved ones because of Dr. Foley and that is the crime he takes with him to eternity.
One story of Dr. Foley is here.
The Governor and Florida Supreme Court have placed the life of every litigant, Judge, court personnel, and lawyers in danger by ruling that we cannot require people to wear masks in buildings. But we say Judges, who control their courtrooms, can require people to wear masks and in Court AND MUST DO SO.
DO NOT STAND FOR ANY JUDGE WHO DOES NOT REQUIRE PEOPLE TO WEAR MASKS ION COURT.
DO NOT STAND FOR ANY JUDGE WHO HELPS KILL PEOPLE THE WAY DR FOLEY DID.
THERE IS AN OBJECTIVE RIGHT AND WRONG. AND IT IS WRONG AND DANGEROUS TO NOT MAKE EVERYONE INSIDE A SMALL COURTROOM NOT WEAR A MASK.
Post one of two.
You hear the V word in the aging halls and courtrooms of the REGJB every day. You hear judges use it (wrongly), you hear prosecutors use it (understandably) and you hear defense attorneys use it (unforgivably) which causes us no end of agita.
The V word is of course "Victim".
Victim is a status, conferred not by the bringing of charges, but by the resolution of a case where if a defendant pleads guilty or is found guilty (rare occurrences in our practice) the COMPLAINING WITNESS now, and only now, is entitled to be called a victim.
Imagine a self defense case. A burglar breaks into an occupied home in the dead of night and is shot dead by the home owner. Charges are brought. The burglar is the deceased; the dead; the criminal; but certainly not the victim.
And yet, we hear all the time phrases coming from the bench like "did the victim give a deposition?" and the like. To which we respond, "there is no victim in this case. There is only a complaining witness" who in our world is some lying, conniving, devious, miscreant not worthy of sharing the same mask- purified air as the rest of civilized society.
Which is why we were surprised and gratified to see an experienced Judge - Michael Schroeder- in Kenosha, Wisconsin, prohibit the use of the V word in trials. Judge Schroeder is gaining notoriety for his handling of the Kyle Rittenhouse trial, and in this article in the Washington Post, his ban of the V word is discussed.
The late, great REGJB Judge Michael Salmon, during trial, when the complaining witness would make a (in our cases, mistaken) identification of the defendant, and when asked by the prosecutor to have the record reflect that the victim identified the defendant, would respond "that's for the jury to decide".
Do not use the V word please.
Every judge who dons the black robes fantasizes about standing up for justice against popular opinion. "Oh, if only I was a Judge in Mississippi in the 1960's, I would have dismissed all those charges against civil rights activists" they say to themselves.
In his famous April 13, 1963 letter from a Birmingham Jail, where he was incarcerated for his civil protests, Dr. Martin King famously wrote:
I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.
The words have deep philosophical meaning. The concept of "mutuality", that we are all inhabitants of this world, this globe, this nation, our own city. When one person acts with injustice, all are affected. That in the words of President Kennedy in a speech two months later "For in the final analysis, our most basic common link is that we all inhabit this small planet. We all breathe the same air. We all cherish our children's future. And we are all mortal."
Now, in November 2021, with nearly three-quarters of a million Americans dead from an insidious virus that has been more than our equal, our judges in Miami are faced with a choice. Do they, like the southern racist Judges of Alabama and Mississippi, and all of the South (with a few notable exceptions like US District and Circuit Court Judge Frank Mins Johnson) look the other way and shrug their shoulders as Florida's Governor and the Florida Supreme Court race to the bottom of science, and pander to the fears and ignorance- the same type of fears and ignorance that allowed racism to flourish- and watch people kill themselves and potentially fatally infect others by not requiring people to wear masks in their courtrooms?
Judges can tell litigants when to appear in court; they can dictate the manner and method of a trial or a hearing; they require men to wear jackets and ties during August in Miami when humidity is 8000%; but they cannot require a person to wear a mask in court to protect themselves, other participants, and their staff?
Judges can incarcerate; they can take money; they can order the mechanism of the State to end the life of a citizen; but they cannot require a person to wear a small mask?
If our judges do not decide to protect us, we shall decide to protest like the civil rights activists of the 1960s. AND HERE IS HOW WE DO IT.
Dr. King organized sit-ins. We sit and we do not stand when Judges who will not protect us do not require everyone in their courtroom to wear a mask, enter a courtroom, because they are not worthy of our respect.
A simple act of defiance that says "you can order me to appear, but you must also protect my health."
WE CALL FOR ALL ATTORNEYS AND THEIR CLIENTS TO NOT STAND WHEN A JUDGE WALKS INTO A COURTROOM UNLESS THAT JUDGE REQUIRES ALL PAETIES TO WEAR A MASK.
Dr. King wrote these words and it is time to put them into action:
In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action. We have gone through all these steps in Birmingham.
This is the moment for all those judges who were sure they would do the right thing. Will you protect the people in your Court? We are watching.
Week 8 in the world famous REGJB Survivor Pool for 2021 will forever be known as the Great Bengal Massacre when the Cincy Bengals fell to the J...E....T.....S Jets Jets Jets! and lost to rookie QB Phenom Mike White, and in the process wiped out most of the REGJB Survivor Pool. Just 7 remain, including fan favourite Fake Freddy Moldovan, and two (Colby and Markus) have strategically played their Bye today, ensuring they will continue into week ten.
There is almost no game we like this week, with injuries to key players in Tennessee (Henry), Dallas (Prescott), and New Orleans (Winston) keeping us away from those games.
We will take the Ravens at home -5.5 against the Vikes; and Steelers at home Monday night -6.5 against DA Bears. We like over 45 in the Cardinals/49ers matchup, and under 53.5 in Tennessee/Rams Sunday night game.
Well, we are having another one of those moments. Monday we will examine who will stand up and be counted, and who will be hiding in shadows behind a Florida Supreme Court that has lost its collective mind.
Only on the best damn legal blog around.
It is midnight. A sedan pulls up to an ER in a hospital in Northern Florida.
Dramatis Personae: An ER Attending Physician; a Patient; his "clerk"
DR: Mohammed: Good morning. I am Dr. Mohammed. The ER resident has spoken with me. You have a high fever and persistent cough. Your oxygen saturation level was 92 when you arrived and it is currently 89, which is dangerous. We are waiting test results, but we are pretty sure you have Covid. There is a treatment protocol I would like to begin now with a common steroid and a series of IVs you may have heard of: mono-clonal antibodies.
Mr. X: Well a couple of questions first [cough, cough]. If you do not mind me asking, are you an American?
DR: No. I am a visiting physician training American doctors in pulmonology and immunology. I was formerly the chief of Pulmonology at Hospital Universitaire Pitie Salpetriere. It is considered the best hospital in France.
Mr. X: Well with all due respect, there is not really covid. And I would like an American doctor. Foreign doctors don't train Americans. I mean America invented x-rays and blood transfusions and discovered that germs cause disease and we discovered penicillin and the list goes on and on.
DR: Actually, every discovery you mentioned was by a doctor or scientist in a country other than America. For example, X-rays were discovered in Germany. But the people who saw you in the ER are new residents, meaning they have been doctors for less than six months, while I have been a doctor for thirty years.
Mr. X: Well, lets talk about [cough, cough] what is wrong here. If I do have Covid, which is just a mild cold, there are plenty of great treatments that most doctors don't know about or won't give. Don't you have like a former NFL or NBA player working here who may know more about this than you? Down the street from where I work there is a liquor store and the woman who works there has a friend who supposedly got Covid and they used this horse medicine that worked along with these homo-opopathy-something pills. Now I don't go for this trans-gander people who violate the Lord's words, but those medicines were really researched by Aaron Rodgers, who is a Super-Bowl winning quarterback for like, five hundred pages. So he really knows about this stuff. So let's try that.
DR: I think you're referring to Homeopathy, and while it doesn't refer to the sexual preferences of the practitioners, there have been over 1800 studies that have concluded it does not work. Now, may I ask if you have been vaccinated against Covid.
Mr. X: NO! This is doctor-patient privileged, okay? The young woman who drove me here is my clerk, but I am getting divorced and we are going to be married and want a family and she has a friend who has a cousin who went to a wedding and six months after the wedding the husband, who was vaccinated, had a swelling in his nether regions and cannot get his wife pregnant. Now I believe in the bible and the lord said go forth and multiply. And right now my clerk. Candy-Mae, and I are able to have sex and I do not want that to stop.
DR: Well, if you're married and having sex with this young woman, the first thing I would recommend is that all of your sexual partners get a Covid test, not withstanding the Tenth Commandment about coveting your neighbor's clerk.
Mr. X: Well as it turns out, I am a Justice on the Florida Supreme Court and now that you mention the Ten Commandments, as soon as we get a case, we are going to allow the Commandments to be in all public buildings.
DR: So it's Commandments yes, Masks, no?
Mr. X: You know doc, [cough, cough] I am starting to like you.
COMING MONDAY: Letters From A Miami Courtroom. When Judges see a wrong, how many of them have the courage to right it? Not many it seems.
Because we are Florida, and do not believe in science, and because we are Miami, where #becausemiami trends on Twitter, our Chief Judge, following the administrative order of the Supreme Court, where belief in science and a decent IQ are not prerequisites for serving, but a firm belief that Jesus Christ is the lord and savior, and a membership in the Federalist society are prerequisites, you no longer need to wear a mask in Miami State Courts.
Doctor: I am afraid you have covid; we need to place you on a ventilator; your odds of surviving are slim; these may be your last conscious moments on earth;
Lawyer: But the Florida Supreme Court said I did not have to wear a mask in Court. This cannot be true....
We do not know what the attitude of our judges are going to be, but rest assured we will NOT appear in any court, or public building where people are not required to wear masks.
For those of you celebrating this putrid turn of events, we implore you, the next time you need a surgical procedure, please mandate that the surgeon and her staff not wear masks whilst they slice you open. Put your money where you mouth is, since you do not have a brain.
STUPIDITY WARNING. SOMETHING DANGEROUS AND STUPID TO FOLLOW:
COVID-19 ADVISORY #122
MASK REQUIREMENT AT ALL MIAMI-DADE COURTHOUSES
RESCINDED EFFECTIVE IMMEDIATELY
Following new guidance issued by the Florida Supreme Court and Miami-Dade Mayor Daniella Levine Cava lifting mask requirements, the Honorable Nushin G. Sayfie, Chief Judge of the Miami-Dade Courts, has rescinded mask requirements at all Miami-Dade Courthouses effective immediately. An Administrative Order to that effect will be issued in the coming week.
The use of masks will continue to be encouraged at all Miami-Dade courthouses when individuals are in confined spaces with others.
“While we are in a good place at the moment with respect to COVID-19 transmission rates in Miami-Dade County, we are very much still in the midst of a global pandemic,” Chief Judge Sayfie said.
Those who are unvaccinated also are encouraged to continue to wear masks at all Miami-Dade courthouses, for their own safety as well as those around them.
THE CAPTAIN REPORTS:
GOVERNOR NAMES NEWEST COUNTY COURT JUDGE IN RECORD TIME ...... Breaking tonight
It was just last week, October 26th to be exact, that the 11th Circuit JNC sent the following six names to the Governor's desk as a result of a vacancy on the County Court bench due to the elevation of County Court Judge Diana Vizcaino:
To the credit of the JNC, half of the nominees had a background in criminal defense as Chris Green began his career as an APD, Kevin Hellman has been with the PD's office for his entire career, and Chris Pracitto is a practicing criminal defense attorney.
Of course this means that none of those three nominees ever had a chance once their names arrived on the Governor's desk. DeSantis has been in office for 34 months now and to date he has only named two PD's to the bench, Ayana Harris (AFPD) and Barry Dickson (APD - appointed to the Escambia County Court).* Contrast that with the fact that our Governor, who likes to brag about the diversity of his appointments, has named 94 ASAs, AUSA, AAGs to the bench of which 57 were working in that capacity at the time of their appointment.
Congratulations to our newest County Court Judge Javier Enriquez, who is currently the General Counsel to the Department of Children & Families (DCF). Judge Enriquez has been a lawyer for - wait for it - exactly seven years. His current assignment has him working in Tallahassee. Enriquez' name was recently on the Governor's desk back in July of this year when he was a finalist for the two open Circuit court seats (Rosa Figarola and Martin Zilber). In 2018, Enriquez ran for State House District 114 against Incumbent Javier Fernandez losing 53% to 47%. Enriquez is a member of the Federalist Society (shocking, I know).
He now joins our Miami-Dade brethren on the County Court bench. Welcome Judge Enriquez.
FACDL-MIAMI 2021 AWARDS GALA - VIRTUAL
The Florida Association of Criminal Defense Lawyers - Miami Chapter will Zoom into your living rooms this Saturday evening at 6:00 PM. If the event comes close to last year's Emmy winning performance hosted by Matthew ("Mike") Meyers then this is must see TV.
You can catch all the action here:
Please click the link below to join the webinar:
Congrats to all of the honorees:
Judge Andrea Wolfson - The Gerald Kogan Judicial Distinction Award AKA "The Kogie"
Jeffrey Weiner - The Pearson-Prebish Founders Award
Audra Cohen - The Rodney Thaxton "Against All Odds" Award
Yanelis Zamora - The Gregg Wenzel Outstanding Young Lawyer's Award
Let's all congratulate and recognize our great profession and our colleagues, and judges, who strive to make a difference.
*Governor DeSantis has also named seven former APD's to the bench.
In the military, when a General decides to take a hill they issue an order. The Colonel then orders the Major to take that hill. The Major orders the Captain to take that hill. The Captain tell the Lieutenant to take that hill. The LT tells the Sergeant that the General wants them to take that hill, and the sergeants leads his or her troops to take that hill.
Federal Magistrates in the SDFL have been ordered back to court starting next Monday. Let's hope that in the SDFL, this is not June 2021 all over again. For Judges who read the blog, this is an allegorical reference to a time period just before the Delta variant ripped through our country, when people were vaccinated and everyone was feeling good. Then Delta/ Covid hit and you know the rest.
It will be nice to see Judge Torres or Judge Louis again, and perhaps to trade movie and music trivia with Judge Goodman. But we are worried this could be problematic.
TOO WHITE TO GO TO JAIL
This Capital rioter Texas real estate agent- Jenna Ryan- tweeted that because she had blonde hair and white skin she could not be sentenced to prison for her actions in invading Congress on January 6, 2020.
US District Court Judge Christopher Cooper did not agree, and sentenced Ms. Ryan to 60 days in jail, commenting that she showed no remorse for her actions.
Before we get to the main topic, we feel compelled to report that on Tuesday. November 1, QAnon supporters gathered in Dealey Plaza, Dallas, Texas, to await the return of John F. Kennedy, Jr., the son of the late president. In QAnon/Republican beliefs, 11/1 was the day JFK Jr was going to return. The former president of the United States would then make JKF Jr his running mate in 2024. And if we take the story to it's QAnon/Republican fullest, once President again, POTUS 45/47 would resign to become...we kid you not..."King of Kings."
|The Scene at Dealey Plaza Tuesday|
Alas, none of this came to pass, probably because of the intervention of Vampire/Pedophile/Pizza Restaurant owners, who once again thwarted the former president.
SHOULD THE DOJ BRING A CASE THEY CANNOT WIN?
In Miami this past week there was the ABA White Collar Criminal Defense meeting. Deputy Attorney General Lisa Monaco gave a speech in which she indicated that her department would bring a case they had little chance of winning.
Into this contretemps stepped none other that our own David O Markus who wrote this piece in the Hill disagreeing with the position of Ms. Monaco. Mr. Markus rightly pointed out the collateral consequences of just being indicted, including loss of job, loss of income, an enormous financial undertaking in hiring a defense team, and the personal stress of going through trial prep and a trial.
While we tend to agree with Mr. Markus, there is another side here. Right is right. Criminals should be prosecuted, and no lawyer, not even a prosecutor, should walk away from a tough fight.
What say you? With whom do you agree?
The new federal guidelines manual is here, and you know what that means?
A certain federal blogger is blissing out over the new manual. From an in depth discussion of the color changes (the new one is blue with gold lettering), to an analysis on the appendix B changes, you can read all about it here.
There is a video you are expecting to see. Scroll down. We will not disappoint you. We never do.
ZOOM DAY TWO
Meanwhile, based on our blog post yesterday, this much we know. Regardless of whether or not the Zoom ID numbers are to be found somewhere in the morass of state court web pages, they are NOT readily accessible. They should be on the front page, and under the word ZOOM not Virtual Court Hearings or whatever bureaucratic speak they use.
And while we are at it, and we direct this to a few judges who read the blog every day and do correspond with us, let us ask you a few questions. You are a plumber, your assistant was arrested, you go on the 11th Circuit web page to find out the following:
1) What time are felony bond hearings? Where are they held? What is the Zoom number? When bond is posted, where is the person released and how long does it take?
2) What time are misdemeanor bond hearings (same questions as above).
3) What time are Domestic Violence bond hearings? Does the same judge who does felony or misdemeanor bond hearings do the DV hearings, or is it a different judge in a different place with a different Zoom number?
Judges and clerks talk a good game about being public servants. Then let them serve the public and make it easy for people to find answers for these questions. We hazard a guess that over 90% of people going on the clerk or 11th Circuit Web page want an answer to one of those questions. We are watching.
And now, because you just know DOM had a similar reaction yesterday when he heard the news at his office on top of a garage... here is the video you all want.
UPDATE: A helpful reader (who wears black robes) sent us this link for Zoom calendars
But here is the problem your honor.
When you go to the front page of the 11th Circuit Website- which is the landing page for searches, the page you provided us DOES NOT HAVE A LINK TO IT. In other words, the page you provided us is H.I.D.D.E.N.
What there should be, as a common user, and not a member of those that breathe rarified air hovering several feet above mere mortals in courtrooms, is a Link, prominently displayed on the front page, that says something like "ZOOM LINKS FOR ALL COURT HEARINGS. CLICK HERE!"
But of course, this being a project of the judiciary/bureaucrats, there is no such easy link. However, on the landing page, you can find all you want to know about SOFIA- State of Florida Interactive Access Pilot Project. So let's see, your loved one has been arrested and is in jail, you desperately want to attend the bond hearing. No links for Zoom. But you can spend several interesting minutes perusing a pilot project. Perhaps this will help ease your anxiety. But we do not think so.
Let's say you are a citizen of Dade County and someone you know was arrested. There is going to be a bond hearing, and of course it will be on Zoom. So what is the Zoom address?
Being a citizen of the 21st Century you use your phone to go to a web site. This should not be too hard.
After a few searched you get two website that look promising.
The Clerk of the Court website looks like it might work. And there is the 11th Judicial Circuit Website, which after a brief foray on the US Eleventh Circuit Court of Appeals website, looks like it might help.
"Hmm...let me just search for 'Zoom Bond hearings'. Nothing. "
"Bond hearings? Nada. "
" Just a search on the website for 'Zoom' should work, right ? Just sort out the various Zoom addresses. This has to work... Strike three."
There are tabs for tickets, and divorces, and a lengthy discussion of domestic violence and not one, but two help lines anyone can call.
But a Zoom link for a bond hearing? Why would the Miami Court System provide that?
There are plenty of helpful maps with directions for parking. But of course, people do not want to park and go to court and get Covid and die (except in Broward, where it's June 2021 again and no masks are needed! Hurray! ).
It's been over 18 months and not one damn link discoverable on any Miami Dade Court or Clerk website for an F'ing zoom link for people who need it.
Oh wait. Here it is. It's cleverly hidden under the Title VIRTUAL COURT RESOURCES
Because putting a tab that says COURT ZOOM LINKS is too easy and makes too much sense for our court administrators. No, let's use the term "Virtual Court Resources" in a town in which many people do not speak English, and at least half the lawyers and Judges, not to mention 95% of the litigants call arraignments arrangements.
Why stop at Virtual Court Resources? Why not call it
Electronic Non-In Person Internet Web-Based Attendance Assistance?
Electronic Based Court Assistance?
Your tax dollars, not at work.