DO PROSECUTORS LIE TO JUDGES?

 This is the right way to finish the year. 

For those of you who do not know him, (and that means 99% of the robed readers who inhabit the REGJB and think nothing ever went on before they arrived in all their majesty) David Troyer was the Chief of Narcotics in the 1980's at the Dade SAO when Janet Reno was the boss. Talk about being in the right place at the right time. 

David was a fierce advocate, and like all prosecutors reaching a position of responsibility under Reno, he took his obligations towards justice very very seriously. If there was a prosecutor who, by turning over some piece of discovery, knew s/he would likely lose the case because of the disclosure, David Troyer would be at the top of the list of ASAs who wouldn't blink in doing so. You can add Abe Laeser, John Hogan, Richard Shiffrin, David Gilbert, Bill Howell, Lenny Glick, Kevin DiGregory, Reid Ruben, Howard Rosen, Paul Mendelson, and a host of others who would do the same.  (we know we have missed many many names from the old days- feel free to chime in). Being a prosecutor in Janet Reno's office meant "doing your level best" (a phrase she liked to use); "going where the evidence took you" (ditto); and scrupulously adhering to the highest level of ethics as a prosecutor. 

Thus, we are not surprised to have received this comment from Mr. Troyer. He speaks from personal experience, and he is both right and wrong and we shall explain why. But first, let us say that it pleases us to no end when people like Mr. Troyer read the blog and comment. It is part of the reason we put pen to paper, so to speak.  

David Troyer said...

I am so very disappointed in this post, Rumpole. Painting all prosecutors with the same brush, based on the actions of a few? Shame on you. Make no mistake, any prosecutor who lies to the Court does not deserve to be a prosecutor, and should not even be practicing law. Same goes for a police officer who lies in his/her testimony. In 40 years as a prosecutor, I have seen mistakes and bad judgment, but I have never seen a prosecutor lie to a judge. Those of us who started under Janet Reno were told by her that our first job was to protect the innocent, and our second obligation was to convict the guilty. This is a lesson I never forgot. And nothing is more important than an attorney's integrity. A reputation takes a lifetime to build, and can be ruined in a moment. I am sorry that some have become so jaundiced that they view this as a common occurrence among prosecutors. I dare say it is not.

Rumpole responds: 

    You are right about the ideals of prosecutors David, but sadly wrong with how that honourable profession is practiced today. We can recite a litany of cases where prosecutors have been caught doing just what the AUSAs did in the case we blogged about. The SDNY has had several recent and notable cases, all reported by the NY Times. In one case, exculpatory material was hidden, mid -trial, in a large discovery dump, and in the emails later reviewed by the judge, the placement was intentional. The NPR article is here.

And here is the NPR article on federal prosecutors hiding evidence in the prosecution of Alaskan Senator Ted Stevens. Their misconduct was so egregious that the conviction was reversed and the case dismissed. 

The fact of the matter is you come from a time, an office, and a leader, who recognized the very special privilege it was to be a prosecutor. But have you been on the defense side recently?  Speak to lawyers who handle post-conviction cases, and they will uniformly tell you that most prosecutors and judges, even when confronted with compelling evidence of innocence, will default to process and procedure over doing what's right. Janet Reno would have never stood for an innocent person being incarcerated, even where deadlines to challenge such convictions may have passed. She would have said "do the right thing". 

What we differ on is not what is right, and not what should be done, and for that matter not what the prosecutors under Janet Reno did- but what occurs today. Very simply, it is much worse than you think. And as bad as it is with prosecutors, it is worse with police officers- which is what led us to warn judges in the post you write about,  about justifying decisions by defaulting to the old trope "Police officers (and/or prosecutors) do not lie in court." 

They have. And they will. 

WHERE IS RUMPOLE ?

 And why would we ever want to go here? (yuck). 

vani

Anyone get a look at POTUS 45's tax returns? We heard he lost a boatload of money before living at 1600 Pennsylvania Avenue. 

As we approach the end of the year, we sincerely hope the defense bar that reads this humble blog has followed our advice and gotten out of town for the first week of the New Year "Sorry Judge, I cannot go to trial January 3, I'll be on a pre-paid family trip to Machu Pichu."

You know what has been a big disappointment this past month? Your Miami Dolphins and their four-game losing streak. They tanked. The needed to go 3-1 and not 0-4. They are not as good as we thought they were. 

Now we have some surprising news for you, so perhaps you should sit down. Courts will be CLOSED (that's cerrado for those of you that Habla Espanol) on Monday January 2, 2023. 

Judges and prosecutors have to wait one more day before tucking into some Christmas geese dumb enough to have their cases set for 1/3/2023. 

Who's going to Joes Saturday night? Look for your favourite blogger eating some stone crabs, and drinking some cocktails. 

Coming soon. Rumpole's New Year's Resolutions. 

HOT DOG!

 When in NYC we have our favourite table at 11 Madison Park, and we have our favourite dishes, served at a Michelin starred restaurant that we think- with apologies to French Laundry- is the best in the country. 

In 2010 co-owner Will Guidara was working the lunch shift when he overheard a table of guests talking about the great meals they had while visiting the city. One guest said that he had not had time to get a NY Hot Dog from the famous carts that dot the city, and he was craving it. 

Guidara rushed out of the restaurant, found a hot dog vendor, bought a few, brought it to the kitchen and had them adorned with some gourmet toppings and served it to his astonished guests.  This article recounts the incident: 

"No one had ever reacted to anything I served them better than they reacted to that hot dog," Guidara said. "Each person said it was not only the highlight of their meal, but of their entire trip to New York, and they'd be telling the story for the rest of their lives."

He turned a champagne cart into a Budweiser cart for a guest's father when the guest said his dad loved Bud beer. 

In the REGJB we have had the Roy Blacks and Richard Sharpsteins and Eddie O'Donnells stand before the bar and defend clients. 

We also had the Sy Gares.  

One group of lawyers served Michelin- starred defense.  The other served a hot-dog defense. Both won and both had satisfied clients. 

There's a lesson here somewhere.  Beyond getting brown mustard and onions on the dog as an appetizer at 11 Madison Park. 

THE NEW NORMAL

 By now it has sunk in that in the case before SDFL Judge Gayles,  which we blogged about here, AUSAs lied to Judge Gayles. They invaded the defense team with a cooperating co-defendant, and when caught, they lied in court to the judge. The agents also lied when they testified at the initial hearing on the motion for a new trial. 

One AUSA tried to get an agent to cover for him by writing a fake report.  Government agents and prosecutors came to court and minimized the impact of the use of a cooperating co-defendant attending defense meetings where a Joint Defense Agreement had been signed. 

In the Office of Professional Responsibility investigation, it came out that when a defense attorney for the cooperating co-defendant expressed concern, one agent told him "if he wants to get time off his sentence, this is what he has to do."

What happened before Judge Gayles was a concerted effort by two prosecutors and multiple federal agents to subvert justice, invade the sanctity of attorney/client privileged conversations and then lie to cover it up. Pure and simple. 

Is this an outlier? A one off? We think not. 

Why is it so hard for Judges to accept that law enforcement and prosecutors are human and that they will compromise their values and ethics to win cases?  A defense witness will lie for their loved one, because they have a motive.  Judges say that all the time and prosecutors argue that to juries every day in this country. But a law enforcement agent is just doing his job. Prosecutors will not risk their career to win a case. That is the reasoning of Judges across this nation. And it is wrong. And how many of these cases do we have to see before we accept that it is wrong? 

Don't prosecutors and agents risk professional ridicule and loss of power and prestige when they lose a big case? Aren't they afraid of supervisors whispering "no- she lost that last case at trial, let's assign someone else to this new case and send her back to handling theft at post office cases for the next few years until we have confidence in her again." 

In nearly 40 years of criminal law practice, we have seen the same passion and desire to win in police and prosecutors that we see in defense counsel. Cops form opinions- "he did it, so I have to get him, even if I lie about that statement I overheard him say."  Prosecutors- and this is from a true episode in the SDNY a few years ago- bury a few pages of exculpatory documents in a digital dump of tens of thousands of pages of new discovery. They technically provided Brady material, but they didn't want to lose so they tried to hide it from the defense. 

This is not a call for prosecutors and cops to play fair. They won't. They never have and they never will. It is a by-product of the adversarial system. Prosecutors and police officers will continue to try and win at all costs when they think a guilty person may go free. They become their own judge and jury because they think they are best situated to evaluate what the defendant-  who they have been investigating for years- deserves. Prosecutors and police officers have almost no faith in judges to do the right thing. That's why they lied to Judge Gayles- and if you think he is the only judge in this district to be lied to in the last few years by prosecutors, then you also believe the last presidential election was stolen. 

This is call to Judges to OPEN YOUR EYES and start believing that like everyone else before you, prosecutors and police officers will lie to you, in open court, even after taking an oath, if they think they can get away with it,  and the ends- in their minds- justifies the means. 

So Judges, deny all the motions you want. Find as many defendants guilty at bench trials as you care to, but just DO NOT justify your decision with the faulty logic that a police officer or a prosecutor would not risk their career in lying to win a case. You now have proof they did and do. 

GOODBYE TO A LEGEND

 We say a fond REGJB Blog goodbye to a blog friend, supporter, and all-around great guy - ace Herald reporter David Ovalle. Like other Herald reporters before him, he is going to the Washington Post to cover the Opioid crisis. Yes, the Washington Post needs a reporter dedicated to the opioid crisis. Meanwhile the Miami Herald has trouble getting a reporter to cover Miami. 

David carried on the tradition of great Miami crime reporters. Edna Buchanan. Susannah Nesmith. And then David Ovalle. 

Along with covering crime in our beloved REGJB, David covered more hurricanes than anyone from San Diego should have to, and he was part of the Herald Pulitzer prize winning team of reporters that covered the Surfside building collapse tragedy. They won the Pulitzer in the Breaking News category. 

David was and is a great reporter. He quickly consumed the Miami REGIB lore. He covered the greatness of Sy Gaer, Richard Sharpstein, and knew about Janet Reno and Richard Gerstein and Bennett Brummer.  The Lozano riots were before his time, as were the McDuffy riots, but he knew about them and how they affected Miami and the REGJB. He took the time to learn about our legendary building and our legends. And that helped him do his job in the superb manner he did. He covered murders, and REGJB characters. He covered justice and injustice and reported on the each with the same fervor and ferocity for the truth. 

David became part of the REGJB for the last twenty years or so. When the story of this unique building and people is finally written, he will be in chapters integral to who we are as a legal community. He reported our stories without becoming part of the stories until his leaving us became the story. 

We do not know if he will keep his @davidovalle305 twitter feed. @davidoxyDC doesn't have the same ring to it. February 1 will be his first day at the Post. 

But in this day and age of social media, media feeds, on-line stories, twitter, IG and the like, David will only be a click away. Until otherwise you can wish him well in a tweet. 

Woodward. Bernstein. Ovalle. Has a nice ring to it. He will be perfectly positioned to cover the second presidency of Donald Trump, and his criminal trial(s). 

Meanwhile: WRITER WANTED Must know about crime and law and be comfortable drinking mediocre coffee while huddling in wifi hot spots of a 60+year old building while covering trials before prima donnas who wear black.  Must not be squeamish and ok to view crime scene pictures. Must not be susceptible to the charms of prosecutors who hide discovery, judges who take long lunch hours, and criminal defense attorneys who pass off murders as simple batterys with an unhappy ending. Long hours and low pay a must. Inquire at the Miami Herald. 

NFL 2022 CHRISTMAS SUNDAY EDITION

 Merry Christmas! It's time to pay for those xmas shopping bills. 

First up is the news that You Tube TV (which we did not know existed) has purchased the Sunday NFL Ticket for 2 BILLION DOLLARS a year, with certain incentives that could raise the price. And this does not include the 200-300 million that the NFL belives it will collect from bars and restaurants showing NFL games. It's a good time to own an NFL team. Bitcoin or the Jaguars? Hmm...buy the Jags. 

Green Bay is in town enjoying a Miami Christmas. The Fins need to win. Now. Today. Miami -4. 

Bucs at Arizona. Arizona is down to their 3rd string Qb- a kid named McSorley, and we digress to mention if you find yourself in NYC, McSorely's is the oldest bar that's been continously open even during prohibition. That being said, the Brady's -6 and under 41. 

The Monday night game is Chargers at Colts. The Colts are comming off the largest collapse since Trump lost Georgia and Arizona. The Chargers are our biggest disappointment this year. Still, we like San Diego -4 under 47. 

MERRY CHRISTMAS

 In England we say 

HAPPY CHRISTMAS 

"For unto you this night in the City of David a savior is born......"

When we believed in Santa Claus, there were five guys from Ocala, Florida called the Royal Guardsmen who capitalized on the Snoopy/ Peanuts craze in the 1960s and wrote a few songs about Snoopy vs. The Red Barron. 

Coming at ya from 1967,  a follow-up to their hit in 1966 Snoopy vs The Red Barron, it's Snoopy's Christmas by the Royal Guardsman on the REGJB Blog.   It's our favourite Christmas song. 

IN AND OUTS OF BONDS - CHANGES AFOOT

UPDATE: We have spent Christmas eve eve re-reading the below screed on bonds, and perusing the list-serve that shall not be named and we have come to this disturbing conclusion- what is fueling the bond law revision is the anger at the "unfairness" of people who can afford to bond out quickly bonding out quicky while those who cannot afford to bond out quickly remain in jail. 

Now you would think the geniuses who are trying to remedy this problem would create an infrastructure to allow those people eligible for bond but who cannot afford to bond out a means to being released. But NO- these rocket scientists have decided that the way to remedy the problem is to keep more people in jail, and not let rich people bond out quicker. 

PD to client- "you will have to wait in jail over night before seeing a judge tomorrow who will release you. But to make you feel better,  that guy who got arrested in the Tesla, he has to wait too. No more quickly a posting a bond for him. We've achieved economic parity in bonds in Florida by keeping more people in. Doesn't that make you feel better?  Wait- you cannot afford to miss work tonight or you will get fired? Hmmm...that is a problem, but that rich guy cannot get out earlier. Doesn't that make you feel better? You're being treated just like him. Congrats!"

If the people from the Arnold Bakery (see below, you will understand shortly ) wanted to make recommendations about reforming bond in Florida, start by putting more cases on the ROR list, and stop making lists of 700 more crimes that require people to wait in jail longer. 

________________________________

We are a fan of anything Malcom Gladwell does. His new book -Speaking to Strangers- is another in a long line of remarkable projects he has undertaken. You know what he found about our favourite people on earth- Judges? They are no better - ZERO INCREASE- in determining if someone is lying, especially when making decisions about bond. All of their vaunted experience and training in doing their job means zero, zilch, nada, in making determinations about truthfulness. Which is why, when faced with an obviously innocent client, our robe wearers default to "a police officer wouldn't lie....I find the defendant guilty.... or deny the motion to suppress." Whatever is on the table before them.

Which brings us to PROJECT X! dum dum da dum....Yes, you many have seen your favoritie Judge scurrying around, whispering into phones in hushed voices this past year, while looking furtively about. They were talking and debating PROJECT X- AN ATTEMPT TO COMPLETLY CHANGE HOW BOND AND RELEASE IS APPROACHED IN FLORIDA. 

Currently, as you know, bond is controlled by the state who says "victim wants max" and the judge fearfully denies bond, with an election right around the corner, no sense in taking chances. Now, we have this...mess...and they did it for you (see below)

We will do some legal interpreting when the bull waste gets a little deep. 

ADVANCING PRETRIAL POLICY AND RESEARCH (APPR)

PRETRIAL JUSTICE IMPROVEMENT PROJECT PLANNED FOR 2023

 

The Miami-Dade Courts and its justice partners are collaborating on a pretrial justice improvement project.  The aim is to increase public safety, [ e.g., deny more bonds]  address inequities in the current system, [ a slight nod to racial inequity before getting back to denying bonds] and give judges more information with which to make the best pretrial detention decisions under the law in criminal court cases. [ e.g., how to deny bond without really trying that hard.].  

 The Advancing Pretrial Policy and Research (APPR) Project, now more than two years in the planning, was made possible through a competitive grant from the Arnold Foundation, now Arnold Ventures, and involves collaboration with the State Attorney’s Office, Public Defender’s Office, Miami-Dade Department of Corrections and Rehabilitation, Dade Chiefs of Police, Homeless Trust, and Thriving Mind South Florida. [we will pay you a dollar for every person you can prove you met who works for The Arnold Foundation, Arnold Ventures, or Thriving Mind South Florida. 

Baking bread and setting conditions of bond release since 1883. 

A project launch date has not been set but is projected sometime during 2023. [ Nobody has agreed on anything ], The project is still in the planning stages, but i[n order to provide accurate information and counter misinformation, [not that we read the blog or have any idea about the crap Rumpole spews maliciously into the mainstream of Miami legal thought]  the main components of the project, as well as the requirements of Florida law, are detailed below.

  Highlights of Florida Law Regarding Pretrial Detention

 

• The Florida State Constitution provides that “every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions.” Judicial officers can only consider pretrial detention for two groups of people (Fla. Const. art. I, §14):

1. those charged with a capital offense or an offense punishable by life imprisonment
2. those for whom no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process.

• The Florida Legislature has stated it intends for the “primary consideration” regarding pretrial detention to “be the protection of the community from risk of physical harm to persons” (Fla. Stat. § 907.041(1)) [They want everyone kept in, Woe to the judge who releases anyone.] 

 Shortcomings of Existing Pretrial Processes

            [Too  many people are being released and we had to do something] 

 Money vs Community Safety:

Because financial conditions of release are so widely used, a person’s wealth has become the primary determinant of whether they will be released or detained before trial, instead of the likelihood they will flee or pose a threat to public safety – the only two outcomes that can legally be considered.

        [But what about the judge, pandering to the state, who raises a bond from $200,000.00 to $400,000- without any understanding that the only difference in state court between the two bonds is a bondsman makes 20,000 more on a 400k bond than a 200k bond. Unlike federal cour where bonds are actually secured by property. But let's not go there and follow a system that mostly works.] 

 Existing pretrial justice procedures in Miami-Dade allow people who can afford to post monetary bond – or the 10% premium required by a bonding agent – to “bond out” of jail on any bondable offense, including violent offenses, even if they used a gun, and without ever seeing a first appearance judge. 

[Oh please, no one who shoots anyone or at anyone is getting out immediately. In the context of the above, the person who "used a gun" used it to pry open a shed to get a shovel they thought belonged to them.] 

 Inequity and Inefficient Use of Taxpayer Money:

Persons charged with minor crimes and who pose little risk to community safety remain in jail if they do not have the means to post a monetary bond. This means that taxpayer money is wasted incarcerating those who pose little risk to the community, instead of those who do pose a threat to public safety.

 [Repeat after us...blah blah blah blah]

 

What Is Not Changing

The proposed plan DOES NOT eliminate cash bail or first appearance hearings. 

[Translated into English- the Judges backed down to the lobbyists hired by the bondsmen] 

 First appearance judges will still have the discretion to set a cash bond when appropriate under the law as applied to the individual facts of each case.

 

 What Is Changing

 

No “Bond-Out” for Violent Charges, Career Criminals or Repeat Offenders:

The proposed plan DOES require all arrestees accused of violent offenses, including gun charges, to appear before a judge in a first appearance hearing before they can be released.  This is a marked improvement over our current system, which allows many people in this category to bond out without seeing a judge – regardless of the charge, [so they want us to believe people charged with 12 counts of first degree murder have been bonding out with impunity ? Yeah, right.]  prior history, or whether there is a victim who should be heard. There are more than 700 offenses which will now require a first appearance hearing. 

 

The same is true for those with extensive criminal histories, dubbed “career criminals.” Under the proposed plan, “career criminals” will be held until they can see a judge and will no longer be permitted to pay their way out of jail without a first appearance hearing.

 

 

Tools and Extensive Data for Judges:

The APPR plan provides judges and justice partners with tools and information, projecting the likelihood that an arrestee will return to court and will remain offense-free.

 The tools include:

 

• A Public Safety Assessment (PSA)an actuarial tool that looks at the type of charge, the age of the individual, any past criminal history, and other metrics to project the likelihood that they will appear for future court dates and will not re-offend while out on pretrial release.

[Hey Siri, should I give this gal a bond? This is some AI program they have been sold. Remember when Judge Farina had some discovery/trial program that was going to revolutionize how we prepared for trial. Except this is worse. Judge: "I'm denying bond based on the recommendation of the Hal 2000. "']

• A Release Conditions Matrix developed and customized for Miami-Dade County to help match a person’s scores on the PSA to pretrial release conditions. This works hand in hand with the PSA and all the decision trees that judges will use for release or detention determinations.

This is why bond is denied: 

DID HE SAY THAT?

 It's time to play DID HE SAY THAT?  with your host Rumpole.  The subject today is senator to be Herschel Walker. 

Did he say that.... yes or no?

On the subject of Abortion:

1)  "I believe in life. And I said, you know, if anyone wants to have an exception, I said 'not in my book. I said I'm sorry I feel bad for anyone that's a victim of any crime. I do. T feel like that. That is terrible and that's horrible but we deal with that as it comes."

2) "I believe, like you know, if people have children, which god said was our purpose, then in not having children, we are going against god and you know, that is like what they do in China."

3) "I'm done with this foolishness. I've already told people this is a lie. I also want to let you know I didn't kill JFK either."

On his ideas once he becomes senator:

4)  "I have ideas. Good ideas. And you know, I'm just regular country folk and our ideas are the best ideas."

5) Why are they not talking about things that really matter? Because they don't have a solution for these things. And I say I do have a solution, but I'm not going to tell them because you tell them and they'll think they came up with it."

 On living in Texas and why he decided to run for senate:

6) "I live in Texas. I went down to the border on and off sometimes."

7) "Everyone asks me why did I decide to run for a senate seat? Because to be honest with you, this is never something I ever ever ever ever thought in my life I'd ever do. And that's the honest truth. As I was sitting in my home in Texas, as I was sitting in my hone in Texas, and I was seeing what was going on in this country and how they were trying to divide people."

8) "I'm from Georgia but I live in Texas with good common sense and when I see what they are doing and saying, like I said this cannot be right and someone with common sense should do something."

On Air Pollution 

9) "No matter how much money we put into controlling our air, it goes over to China or to somewhere else, and it messes up. All of a sudden it comes back over here."

10) "Since we don't control the air, our good air decided to float over to China's bad air, so when China gets our good air, their bad air got to move. So it moves over to our good air space. Then now we got to clean that back up." 

On School Shootings

11) "A department that can look at young men that's looking at women that's looking at social media."

12)"What I like to do is see it and everything and stuff."

On Health Care

13) "I believe in reducing insulin, but at the same time, you got to eat right, because he (Senator Warnock) may not know and I know many people that's on insulin, and unless you have a eating right, insulin is doing you no good."

14) "Well right now, people have coverage for health care. it's according to what type of coverage do you want because if you have an able-bodied job, you're going to have health care, But everyone else have health care, it's the type of health care you're going to get. And I think that's the problem. And what Senator Warnock wants you to do is depend on the government. And what I want you to do is get off the government health care and get on the health care he's got."

15) "Health care is like what kinda doctor you got and whether he knows what he's doing. All these big doctors in hospitals ought to go to give health care to the people and then they won't have to go to the hospital and then when they got health care they won't need the health care."

Former US Senators. Stephen Douglas. Lyndon Johnson. John McCain. Bill Bradley. Daniel Webster. Everett Dirksen.  Bob Dole. Arthur Vandenberg.  Robert Wagner.  Hubert Humphrey.  Henry Cabot Lodge.  Mark Hatfield. Robert Taft. Howard Baker. Ted Kennedy. 

Herschel Walker is a race to the bottom. 

Scroll down for the answer key:

Answer key: 

He said it:  1,3,4,5,6,7,9,10,11,12, 13,14

404 B OR NOT TO BE

 Harvey Weinstein was convicted in a LA courtroom this week of rape. In a hotly contested trial, he was convicted of some counts and acquitted others. 

In this essay a former prosecutor argues in the NY Times for the increased use of 404b evidence in sex crimes trials because of how difficult it is to get a conviction.  ( for you robed readers, that's evidence of other crimes, wrongs, or bad acts, supposedly not usually admitted). 

But limitations have their limits. As former prosecutors who handled cases involving many types of serious crimes, including sexual assault, we think trials for sex crimes are different from other trials, and these differences must be reflected realistically in the rules of evidence.

In other words- "sex crimes are different". How long until prosecutors ask for the burden of proof to be lowered in sex crime cases? We are heading in that direction.

We are at a nadir for the rights of accused. Blackstone's hallowed ratio that it is better to have 99 guilty men go free then one innocent woman convicted was long the bedrock of criminal justice in England and then the United States. No more. Now it is the reverse- we are willing to accept wrongful convictions, so long as the Harvey Weinsteins and OJs of the world are convicted.  There are 99 articles and op eds decrying the failures of the criminal justice system to convict the guilty, for every single article about the injustice of a black teenager sentenced to life for a crime she didn't commit, or as in the case we wrote about recently, for a young woman sentenced as a juvenile for an excessive term of years. 

People have little sympathy for the accused. There is not one potential juror who we interview who truly believes in the presumption of innocence. The next time you pick a jury, as them how many of them said to themselves "I wonder what he did" when they walked into the courtroom for jury selection? 

This is going to get worse before it gets better. We are incarcerating more people, for a longer period of time, and mistakes will be made.

More innocent people will be sentenced to prison, and it won't matter to them that they were accused of a sex crime they were innocent of. 

In his famous defense of  British soldiers, John Adams said this: 

We find, in the rules laid down by the greatest English Judges, who have been the brightest of mankind; We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.. 

John Adams, Argument for the Defense, December 3-4, 1770. 

You know what's the most disturbing thing about that quotation? There isn't one Judge in the REGJB or in Florida for that matter that would let a defense attorney say that in opening or closing arguments. 

Happy  Hannukah and when you light a candle, pray you don't get accused of a sex crime you are innocent of. 

Coming up: what a hot dog can tell you about your relationship with your clients. 

NFL WEEK 15 WORLD CUP FINAL EDITION

 We have a rather substantial financial interest in Argentina winning. It will erase all our loses on England, Cameroon, Morrocco and Croatia. 

Go Messi go!  

NFL picks and a very unusual audio book recommendation shortly. 

Skyscraper Lullaby: 

It is rare we have time to listen to an audio book. But finding ourselves recently on the road in Florida traveling to far-flung courthouses in Dixie (where Judges are wont to drawl things like "I hear in Miamah you boys get a year and some probation on first degree murdah cases..."  to which we respond "Fake news, Judge...") we took a recommendation and invested a little less than two hours for one of the most bizarre novellas we have ever heard or read.  It is worth the time. Warning- the first chapters deal with the disappearance of a young boy on an outing with his father. You have to struggle through the heartbreak and sadness we all feel for something like this. It is worth the investment because this little gem takes you places you could never, in your wildest imagination, go. There's nothing cutesy here. This is not about life and loss. It's a sci-fi terror novella that is just a fun ride.  Click the title to go to Audible which is the only place we think you can get this. 

NFL

Your Miami Dolphins, in honor of the retirement of Judge Ed Newman, took the vaunted Buffalo Bills down to the last seconds of Saturday Night's match in Buffalo before losing on a Field Goal. They played well, but the cold hard facts are that the Fins had a three game road trips to San Fran, San Diego, and Buffalo and came out of it 0-3. Super  Bowl teams find a way. Miami did not. 

You know what's a fun game today? Lions at Jets. Two teams on the rise. If the GOAT QB Mike White was playing for the Jets, we would be on Gang Green all day. Instead we line the under 45.  WIN (Lions 20-17).

Speaking of Goats, The Bengals go to Tampa, currently home to the world's saddest QB (even though the rumor is he is dating this hottie Veronika Rajek

Tampa is 1-9-1 against the spread since Week Three. The Bengals are currently in year two of their patented end of season run. They are hitting on all cylinders.  And it is common wisdom "women weaken legs." (see below) We don't like betting against home dogs, but this could be ugly. Cinny - 3.5 at Tampa.  WIN (CINCY 34-23)

NBC flexed the Giants - Commies game to Sunday night because of playoff implications. The Giants are +4.5 and we will take that in a close game. We are also going to take some of our World Cup Argentina money and roll it over on the under 40. Number seems low, but a 21-17 final pays on the under. 

Eagles at Bears seems like a no-brainer as Bully Philly rolls up the score. Until you remember QB MVP Justine Fields will probably remain on the bench because of a minor separated shoulder last week. So skip the 8.5 and take the under 48. That number is too high without JF at QB.  (WIN Eagles 25-20). 

Women Weaken Legs! If Brady had Mick (Burgess Meridith) training him, the Bucs would be Superbowl bound. 

Let us just say right now, spare us your pronoun laden hate emails about the sexists nature of the post and clip. This is humor. And in Popular Culture Rocky rules. And having been trained in the sweet science in grade school, Highschool, and college,  this was an accepted rule for any fighter in training. 

JUDGE ED NEWMAN RETIRES AND CHRISTOPHER GREEN APPOINTED

 After many years on the county court bench, and as a steady, comforting and familiar  presence on the sixth floor of the REGIB,  Judge Ed Newman has called it a career. We congratulate him and wish him well in retirement. 

We did not have many cases before Judge Newman, but he is clearly a Miamian through and through and was known for his kindness, fairness and patience on the bench. You cannot ask much more from a Judge.  

Did you know: If you ever have to go to Bascom Eye Hospital- which is a short walk from the REGJB- it is on the corner of  Ed Newman  Street (NW 17th street). 

As many know, Judge Newman played football for the Miami Dolphins as a sixth round draft pick in 1973 (yes, he missed the perfect season). He played for 12 seasons until  a  knee injury in 1984 ended his career, He had previously overcome thyroid cancer while playing. He went to three super bowls with the Dolphins, winning one in his first season over the hapless Vikings who were destined to lose four super bowls. He was a pro bowl selection three times. 

We will go out on a limb and say in the long and storied history of the REGJB there may never ever be another Judge to sit on the bench who played in three super bowls. 

Judge Newman enrolled in law school at night while still playing football, and graduated in 1987 and was elected to the bench in 1995 with the memorable slogan "Tough on the Field...Tough on the Bench". 

Trivia- name the professional football player who sat on the US Supreme Court and name the professional football player who sat on a state court supreme court bench. 

Judge Ed Neman, unknown individual, and Tony Nathan at retirement party in REGJB this week. 

Christopher Green is your NEW county court judge. 

In a closely watched appointment, former Dade PD Christopher Green was appointed to the county court bench. Green's name went to the Governor along with current county court judges Jeff Kolokoff and Scott Janowitz, who both came up on the short end of this year's judicial elections and were trying to hang on and sought an appointment to this seat, but to no avail. 

It's a cruel business this judicial election stuff. 

READY FOR TRIAL?

 If you follow Rumpole's Rules For Trials  ((c) 2010 all rights reserved) then you know a few things. Avoid Friday Verdicts; NEVER EVER EVER allow a case to be set for trial in the first week of January; and ...

always try to try a case in the last two weeks of December. 

Unlike the first week of January, everyone is in a good mood, especially the jurors, who are more likely to overlook a little mistake (like "I thought the billing codes for medicare were correct, darn it"). 

But alas, our secret is out:

FYI from the Jury Pool -

 

Because the holidays are observed on Monday (12/26) and (1/2), we will be bringing in jurors on Tues, Wed and Thurs of both weeks.  There will be no jurors on Friday 12/30 and 1/6.

NFL WEEK 14 ALL IS LOST EDITION

 The sun had long since set in the desert and yet for England there was glimmer of light. One last ray of hope as Harry Kane bent down once more to adjust the ball, tug at his socks, closing his eyes to visualize his last penalty kick just a dozen minutes or so before. That shot sailed safely into the upper left corner of the net, tying England with France 1-1.  Now it was 2-1 France, and this was the last thin edge of the sun. One last ray of light. Surely Harry Kane, captain, who had just tied the great Wayne Rooney for goals in a world cup, would even the score. 

This was Nelson at Trafalgar. Battling from behind and beating the French just when all hope seemed lost. Ah to be in England now that Kane is to kick. 

Hugo Lloris bounced on his heels, swaying left to right and back again. The French goal keeper knew Kane well- they are teammates on Tottenham Hotspur. The mind games began. Would Kane go back to his strong point, and kick left and high? Or having done that, would he go to the right? Or would Lloris think Kane wanted him to think he would go to the right, so Lloris would break to the left as Kane went back to replicate his first kick. 

All of England stood, in Qatar and throughout the empire. Songs rippled through the crowd as millions of English in pubs could not even bring themselves to sip their ale until the score was tied. Surely at 2-2 England would find a way to the final round of four. 

Kane toed the line as the whistle blew and Lloris bounced and swayed. He took his small steps, measuring his pace, lining up the shot. LEFT. HIGH. Strong...and ...... Lloris broke to his right- Kane's left-  as well -and perhaps in those microseconds before foot met ball Kane's brain registered his friend's move. The brain sent last micro-second signals to the leg and foot. Make it high.  That corner of the net would puff out and the score would be tied. 

The NFL Week 14 begins the playoff run. Teams win now and get in. 

The Jets let us down at the one-yard line last week. At Buffalo today, the Bills are 9.5 favourites. This is when the old Jets folded. And maybe the new Jets will fold as well. But we are going down with the ship. J...E...T....S and Mike White and +9.5.

Miami has it's second West Coast road game in two weeks. Last week Fins QB Double T crashed back to earth. He looked positively Tua like circa 2020. Next week the Bills loom in Buffalo. But today the Chargers await. Playoff teams win these games. Has Miami upped their game? We shall see- Fins -3. 

The 10-2 Vikings are 2 point DOGS in Detroit against the surging 5- 7 Lions.  Say that again please. The Vikings with the second-best record in the NFL are underdogs against a team, playing at home with a losing record. 94% of the action in Vegas is on the Lions.  You know what Rumpole does when everyone does one thing- we do the other. Take the Vikes and the points because although the Vikes  aren't great, something tells us Detroit is just not ready. 

 

All of England held their breath. So did the Franch across the channel. England had not ever met the French in a knockout round. Men and women clad in Union Jacks or Tri-colour flags watched wild-eyed as Kane's kicked whistled though the desert night heat. 

Maybe they will talk about this in many years to come. When the man met the moment and all could come undone. In homes and pubs and schools and cars, fathers will whisper to their sons. 

The great Harry Kane had come undone. 

The ball sailed high to the left, too high to tie the score. 

English hopes were dashed again. 

Their World Cup dreams no more. 

France 2- England 1. 

GAYLES BLAST US ATTORNEYS FOR SPYING ON DEFENSE

UPDATE WE HAVE THE ORDER- SCROLL DOWN- to use a phrase from the very first or second blog post we ever did, "it's a barn burner".  

You don't tug on Superman's cape

You don't spit into the wind

You don't pull the mask off the old Lone Ranger 

And in the SDFL - if you're a prosecutor you do not F with David Markus. 

Judge Gayles blasted AUSAs Ron Davidson and Elijiah Levitt (formerly of the county court bench in Miami) for lying to the court about what they knew and when they knew it about a cooperating defendant who the government used to spy on defense attorneys during strategy sessions where the defense attorneys had signed a Joint Defense Agreement. 

The Herald article is here. If someone has the order, please send it and we will post it. The most insidious part of the actions of the federal prosecutors is their initial pleadings in which they downplayed what the informant did and what they knew about it. Which- because federal judges do no think prosecutors or police officers ever lie- caused Judge Gayles to first not grant relief in the case. 

That ended today when Gayles granted the defense motion for a new trial. 

In this latest round it is DOM 1- USAO 0. 

Pisoni Order Granting New Trial by Anonymous PbHV4H on Scribd

HOMICIDE DETECTIVE MIKE GONZALEZ HAS PASSED AWAY

 Legendary homicide detective Mike Gonzalez passed away peacefully in the presence of his family at age 95. It was a fitting end for a man whose life was so intertwined with those who did not die peacefully. 

From 1956 and for about 35 years,  Mike Gonzalez solved homicides in Miami the old-fashioned way. He worked the case, had an eye for details, tracked down witnesses, put the pieces together of a victim's life and a suspect's life and watched where they intersected. 

Here is the Herald Obit. Not one cop who was interviewed didn't identity Mike Gonzalez as a mentor and that says a lot. When we arrived in Miami he was already spoken of with awe. He was a detective who did it right, did it well, and did it a lot. He solved cases and made the charges stick. 

You did not handle homicide cases as a lawyer in Miami from 1970-1990 without hearing his name. It was spoken with awe and respect by all who worked with him or opposed him in court. 

Detective Gonzalez lived Miami's history; he was a part of Miami history and he made Miami history. His was a life well lived, making our city better through his work and caring and concern. It doesn't get much better than that. 

Photo credit Miami Herald so click on the above link and read their story so they don't sue us 

EVERY JUDGE NEEDS TO READ THIS

 Judge Anthony Kline, at age 83 was the senior most judge on California's First District Court of Appeals. Nearing retirement, he asked to be assigned to Juvenile Court, where he started his judicial career. 

California, unlike Florida, has a new law that allows inmates sentenced to very long sentences as juveniles to petition for release. Kline was assigned the case of Jamesetta Guy, age 58, sentenced at age 17 for her participation in a felony murder robbery. 

First a bit about Judge Kline. He is an advocate for Juvenile Justice Reform. In 2019 he wrote an opinion allowing a lawsuit against the California parole board by a juvenile serving life. The sentence violated the eighth amendment Kline wrote.   In his time on the bench, Kline dissented when his court in 2006 upheld California's same sex marriage ban. He wrote the opinion allowing families of mass shooting victims to sue the gun manufacturer. He wrote an opinion striking down California's cash bail bond system when a person who stole seven dollars could not post a cash bond. Kline is by all accounts a dedicated, thoughtful, liberal jurist. 

Before he was an appellate judge Kline served on the trial bench, starting in juvenile court. In 1981 Kline presided over the trial of Sharon Wright, who along with another juvenile girl, was involved in a notorious and high-profile robbery and murder of a cab driver. Wright was convicted and Kline gave her eight years. Guy was the co-defendant with Wright, but in a series of mishaps and prosecutorial vindictiveness, Guy's case was transferred to adult court, an expected plea to the same eight years was withdrawn and Guy was convicted and 41 years later she was still in prison. 

As the "fitness hearing" unfolded before 83 year old judge Kline, what unfolded was bizarre. It turns out Kline was the one who sentenced Guy to 21 years to life! 

Kline was faced with a judge's greatest nightmare- confronting a person whose life was spent in prison because of a series of mistakes. Kline had to unravel what he did in 1981 and what he could do now. 

When Guy walked into Kline's courtroom 41 years later Kline said "Hi Jamesetta. Remember me?" 

What happened next is an expose in a thoughtful and caring judge's examination into his biggest failure in a career highlighted by many successes. 

Read the NY Times article here. 

This should be mandatory reading for every judge. 

What Judges do have consequences.  

NFL WEEK 13 2022

 Team USA fell to the Netherlands yesterday, the defense that carried the team to the knockout round disappeared when they needed it the most. We also believe that on offense the team does not shoot enough. They opt for that one last pass, trying to thread the needle, when a hard shot has a better chance of scoring, either directly or on a rebound. 

Here's the thing about the world cup- it's two 45-minute periods of uninterrupted play and excitement. It goes quickly and is enjoyable and thoroughly not amendable to the American style of sports where innings or timeouts are quickly followed by 30 0r 60 seconds of adverts. 

We are going to do our picks quickly and then get to something more important. 

Miami plays the best game of the day. A 4pm gem at San Fran. We are riding the Fins to the AFC championship. Take the Fins +3.5. 

Jets + 3.5 in Minnesota. The Vikes are the worst 9-1 team since the Steelers went 11-0 two years ago. What we win betting on Miami we lose betting against the Vikings. Not today. 

It's hard to pass up the Giants as a home dog getting 2.5 points. Vacation homes have been paid for in cash by betting home dogs. The Commies are 6-1 and on a roll. Their defense gives up 15.4 points a game, so we will take the under 41. 

Eleanor Jackson Piel:

Some lawyers spend their careers litigating the nuances of federal civil discovery motions. Others spend their careers making a difference. Eleanor Jackson Peil did the latter. 

In this NY Times profile in 1999, Piel is profiled as a lawyer who exonerated defendants, taking them off of death row, suing Florida for wrongful convictions, defending murder cases, and representing an eclectic group of clients including Nobel Prize winner Linus Pauling. "I always expect to get paid. I just never do" said Piel to the Times. 

In applying to law school Ms. Piel was at first denied admittance. A dean told her they didn't admit women because they suffered nervous breakdowns. Undeterred she got into law school and graduated and passed the bar. 

In 1945 she prosecuted war crimes in Tokyo.  She returned to California and began practicing criminal defense. Although she came from a socially prominent family, her wedding was announced not on the society pages, but in the local section: "Three youths freed and Lawyer Wed". Murder charges had been dismissed on the day she was married. 

In 1964 she went to Hattiesburg Mississippi "because they needed me" she said. A white teacher had been refused service at a lunch counter (before there was Uber Eats) because she was with three black students. Piel sued on their behalf and defended the teacher of the arrest for vagrancy. Piel took the case to the US Supreme Court which ruled in her favor, calling the vagrancy charge "groundless" and giving her the right to sue a private corporation under the 14th Amendment. 

In the 1980s Florida has geared up the death machine, so Ms. Piel comes to the Sunshine state. She takes up the notorious case of the "Death row brothers" condemned to die for the murder of a white woman. Hours before they are a set to die a Judge grants a stay of execution because he cannot read all the motions she has filed before the time of the execution. The brothers, who are in fact innocent, are later allowed to plead guilty in exchange for being released. In her pleadings attacking the case, Piel wrote that the brothers were arrested because "they were available and disposable." Brillant stuff.  Piel called the plea deal "a travesty". 

 In 1999, working with Barry Scheck and the innocence project, she obtained the exoneration of Vincent Jenkins/ Warith Habib Abdai serving life for a rape he did not commit. Piel discovered the physical evidence and then paid $3,000 from her own pocket for the DNA test that exonerated him. 

Piel and her client Abdai

At a party in Los Angeles, Ms. Piel was introduced by a stuffy male lawyer "as the best female lawyer in LA." Taking offense at the backhanded compliment, Ms. Piel told the New York Times "I didn't like that, so I hit him."

Eleanor Jackson Piel died this past week at the age of 102.  The NY Times Obit is here. Read it. 

WILLIE CASTRO

 For many of us practicing law in the REGJB before cellphones and eight-dollar lattes from Starbucks, the name Willie Castro was associated with the notorious Courtbroom bribery scandal in the early 1990s. Yes dear readers, as hard as it is to believe, judges sitting in the same courtrooms you now labour in, sold court appointments for cash.  And one particularly nefarious county court judge names Harvey Shenberg sold the name of a confidential informant for $50,000.00 even though he was told the CI would be killed. Unfortunately for Harvey, he sold the name to an FBI informant -dirty lawyer named Ray Takiff, whose deeds we will leave for another post. 

    Willie was one of the lawyers recruited by one of the masterminds of the scheme- a slug who crawled out from under a rug named Judge Roy T. Gelber. Willie went to trial, was convicted and went to federal prison. 

That is where this story, recounted in the Miami Herald here, begins. Once released, Willie began a thirty year journey of introspection and redemption. His wife, a Miami Dade ASA stood by him. Upon being released they became foster parents, eventually adopting three children who they have raised. Two are in college and one is on the way. Willie did over 13,000 hours of community service, well beyond the requirements of supervised release. The Florida Bar went back on their deal to disbar him for ten years. His legal arguments for reinstatement were populated by testimonials by former Florida Supreme Court justices, and lawyers who are leaders in the community. All to no avail. 

    One brave judge- Fred Moreno- who was one of the judges supporting Willie's Florida  reinstatement, recently granted a motion to have Willie appear before him pro hace vice, although in "Moreno like" fashion, he pondered the advisability of his actions in light of the Florida Supreme Court's refusal to allow Willie to be reinstated. Willie was eligible to appear PHV because despite the disingenuous actions of the Florida Bar, New York State allowed Willie to rejoin the bar, and the SDNY soon followed.  Based on NY admitting Willie, Judge Moreno allowed him to appear PHV. Judge Moreno believes in rehabilitation. The Florida Supreme Court apparently does not.  

    The Miami Herald story has the full facts of Willie's efforts at rehabilitation, redemption, and acceptance of the mistakes he made. Make no mistake, while his acts did not result in any case being wrongfully decided, he paid cash to judges who appointed him on cases. Courtbroom  struck at the integrity of the Miami criminal courts. At a time when the most mediocre of lawyers had pockets stuffed with drug cash, and any schmo with a shingle could wrangle a hundred K of court appointments from judges in the REGJB, the low judicial salaries and pure avarice and greed led to the bribery scandal. 

    Former Federal prosecutor John O'Sullivan who prosecuted Willie and who later became a federal magistrate, appeared in New York as a witness on behalf of Willie in support of his petition to be readmitted. Both John O'Sullivan and Judge Moreno were at the Red Mass ceremony honoring Willie that is reported in the Miami Herald. 

    There is little to no room in our criminal justice system for redemption. Florida specifically states that the purpose of prison is to punish.  There are almost no stories about what Willie Castro has achieved, while the Herald and Channel 7 race to report every story on a crime committed by someone with a prior record. 

    Before he got into trouble, Willie Castro was known around the REGJB as a smart defense attorney. He was the guy you went to for help on your motion to suppress. His fall from grace was stunning. Nearly unbelievable to those of us who knew him. His march back has been even more spectacular. 

    We wonder what it will take for the Florida Bar and Florida Supreme Court to right this wrong and allow Wille Castro to be readmitted to the Bar? Like many others who testified in his behalf- including former Supreme Court Justice Raul Cantero who pledged his law license because he was so sure of Willie's redemption, we would do the same (if it did not mean losing our anonymity). 

#reinstateWillieCastro

Herald scribe David Ovalle has a nice follow up article on the courtbroom players here. 

MUCH ADO

 The other day, wrapping up perhaps our last trial of the year, the judge said she wanted to get through jury instructions "without much ado."

We started us thinking, what exactly is "ado?"

We are in that kind of mood. 

Is it possible that the Ferrero Roche chocolates have an entire business based on harried people buying last minute holiday gifts for the receptionist whose name they do not even know? 

Another non-activist/activist court- this time the Eighth Circuit, shut down a federal program for dubious reasons. Eight states sued the federal government over the Loan Forgiveness Program. The Eighth Circuit granted an injunction and shut down the entire program- because Missouri claimed that the loan forgiveness might cause the Missouri Higher Education Loan Authority to miss payments to Missouri. We always thought injunctions were narrowly tailored and rarely given. Now students in Alaska and Maine and Florida are stymied because the Show Me State has alleged a possible injury. 

As our Constitutional Law Professor always said- it's jurisprudence by "whose ox is gored." 

The Supreme Court upheld the stay and set arguments for February 2023 on an expedited basis. 

This we love: 

People in China are being arrested for protesting the country's covid lockdown policy. In response, students are protesting by holding up blank sheets of paper. 

It is brilliant. By saying nothing, they are saying everything.  

They are calling it The Blank Paper Revolution. 

As Bruce Springsteen sings- "can't start a fire without a spark..."