There is definitely something breaking that is earth shaking in our little REGJB world.
We know ...we are pretty sure we know the basics.
We are pretty sure the Miami Herald will publish a story about it next week.
We are pretty sure it involves an elected public official, and appointed public official, and the Corey Smith prosecution fiasco that unfolded like a moldy rug in the REGJB this past year and has taken down one prosecutor and permanently stained the reputation of a once-proud prosecutors' office.
We have some more information, but we are seeking double and triple confirmation, because unlike prosecutors in certain cases, we do not make allegations we cannot prove.
We are pretty sure of many things about this breaking news, and many of those are shocking, saddening, and distasteful. We think. Because less than a week ago we were also pretty sure that Kamala Harris was about to be elected president of the United States, and how did that turn out for us, the nation and the world? Not so well.
So for now we are keeping our nose to the grindstone and working to conform what we are pretty sure we know.
36 comments:
Wow. That’s a whole lot of typing to say nothing.
This one is going to upend EVERYTHING. This is BAD. Unethical. SO far over the line. Calls into question EVERY appellate case out of the 3DCA that said public official ruled on… bad bad bad.
Does it involve a 3rd DCA judge? Cause that shit is fucking true!
who wants to be the hero and drop a dime in the comments?
Does it mean that KFR must resign over prosecutorial misconduct?
Is Peter Adrian coming back as a Judge?
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Of course prosecutors are held to a higher standard. Defense attorneys are allowed to advocate for their clients no matter what. Prosecutors don’t have that same discretion.
Prosecutors have higher ethics
Curious why everyone highlights the prosecutors and everyone else instead of the five innocent victims. Where are we as a society?
Everything is a diversion from the real cases. The focus is on the prosecutors instead of the defendants - when will we wake up.
Why villefy a moderate DA and attack Judge Miller- supportive of our Criminal Defense Bar
How far does it have to go before someone does something? I am sorry to be cynical, but I just don't believe anything will come of it, whatever it is.
Sad but true.
???
This is all an absolute embarrassment to this profession.
Huh? The prosecutors are the advocates for the victims. So if you want to “highlight” the victims, then hold prosecutors accountable for screwing up their advocacy by being so worried about a conviction they’d commit misconduct… and news flash — defendants have rights and when those rights are violated they can become innocent victims too.
Join and victim advocacy group and go cry somewhere else.
Gosney put out a tweet comment he is suing the SAO and wonders how that will go over in a judicial application.
The rule of law. Peoples lives. Decency. Impartiality. Ethics.
That’s why.
It could all be solved if prosecutorial immunity was abolished. Then prosecutors would be more ethical because there would be a check if they were not. There’s no consequences, so the embarrassment continues.
I read Judge Miller’s texts…she’s mad about how this is affecting her reputation but I didn’t see anything improper. She’s pointing out the factual inaccuracies and criticizing the SAO for lack of action and lawyering (as she should, what are they doing…). It’s embarrassing that the texts are out there but the material isn’t unethical or wrong.
Re prosecutor ethics, in the Gerstein era we represented the people of the state of Florida, not “victims’”, not personal “wins” in court , etc. We were expected to deliver justice observing the highest ethical standards. That meant respecting the rights of everyone in the process including defendants.
If we saw something sketchy later in a case we charged, we were expected to act on the new information, not cover it up.
Gosney was screwed over at the SAO. He is legal scholar.
Correct.
When has a prosecutor ever “acted” on new sketchy information that was later discovered? Even old cases I appeal — no one NO ONE ever did or does the right thing for justice on the state side. It’s get a convicted and then defend the conviction. Please cite a case new or old where the right thing was done. I need some confidence in “the other side”
Clearly you need a course in ethics. There’s some CLEs out there, you should sign up.
Gosney? Is that you? Or one of his fan girls?
When Corey Smith gets a new trial or a fantastic plea deal we’ll see how this was “not improper”
It’s going to take down their entire case. Because a witness that originally prosecuted the case is more worried about her reputation than the defendant getting a fair trial, more worried about her reputation than being impartial. Than the rule of sequestration. Than ethics!
Consider this. Folks living under the Common Law knew Judges could occasionally become biased for a party, or nutty for an idea. They deliberately put multiple judges on appeals so that one with Bronwyn Miller's prejudice couldn't decide the case.
Even if one Judge is in the tank, the other two have a sworn duty to be just.
True… but don’t we have the duty to weed out impropriety when it becomes apparent? For the sake of the integrity of the system and the defendant’s right to fair proceedings?
@ 7:19 pm, I see that the check has cleared. I'm curious: Do you, members of the troll farm, get paid per tweet, retweet, like, or post, or do you get a monthly flat fee from your Messiah for writing nonsense to clean up his disastrous image?
Gosney ain't a Legal Scholar, so you may want to check your facts. He is not even a good writer. His books are awful, poorly written, and cheaply published, and they look like ChatGPT wrote them for him. The funny thing is that he was trying to sell them to his colleagues in that office. He had no idea how to navigate office politics at the SAO, so he made several female colleagues uncomfortable.
Usually, real authors have a publishing house behind them, not a ‘fly-by-night’ printing company he pays (and whines about it) to print his books. Also, ask yourself why, even in the middle of nowhere in Florida (where they would appoint anyone with a pulse), he's never been considered for the bench.
No wonder that dopey woman has to read his ‘masterpieces’ in a closet! I would be ashamed to be seen carrying those books in public.
Part 1
Consider this Kissimmee Kid. And for starters, I am not an employee of the City of Miami Beach. So my statement here is my own, and does not reflect any opinions of the City Attorney's Office or the City itself. Just a "concerned" citizen.
Now I know many people are not fans of prosecutions of municipal ordinances. That some people consider them low on the totem pole, and irrelevant compared to other crimes. Some consider them to be abusive, even cruel against certain people struggling to get by. That can be a whole philosophical debate in and of itself, and of course, it is even more at the forefront due to a law passed by Governor DeSantis which is presently the subject of a lot of disagreement.
Nonetheless, the citizens of Miami Beach wanted them enforced and passed a law establishing a Municipal Prosecution Unit.
Sometimes the judiciary took a dim view of the ordinance violations, and would readily dismiss them if they legally could; there were some instances where they would dismiss them anyway without any authority. And this post is not a commentary on those that did that, or that practice; this discussion is solely focused on just how those cases were handled on appeal before the Third.
Existing case law indicates that when judges dismiss cases without authority, that the decision whether to prosecute or to dismiss charges is a determination to be made solely by the prosecution. See, e.g., State v. Brosky, 79 So.3d 134, 135 (Fla. 3d DCA 2012). A dismissal could stand however, if you could show the prosecution failed to object.
The first of these cases in which this happened to Miami Beach recently, was the City of Miami Beach v. Cosme, 49 Fla. L. Weekly D322 (Fla. 3d DCA Feb. 7, 2024). This was the first of cases, where a judge sua sponte dismissed a case without the municipal prosecutor being properly noticed or present. The defense did its job and argued its heart out, proposing that the case should remain dismissed due to preservation error by the City. They took an email from the City written to the dismissing judge asking for the written order of dismissal (for rendition purposes), as evidence of failure to preserve the objection, because if the municipal prosecutor did not object to the dismissal during the email, that municipal prosecutor implicitly invited error to the dismissal to be appealed. The deciding panel was Miller, Scales and Lindsey. Lindsey rejected this argument (with Scales concurring) pointing to a due process problem (lack of notice, lack of opportunity to be heard before dismissal, dismissing without relying on a rule, futility of objecting to a matter already gone, etc.). Judge Miller accepted the argument, that the City failed to object after the fact, relying on State v. C.W., 166 So. 3d 950 (Fla. 4th DCA 2015). Judge Lindsey distinguished this case, noting the prosecutor was actually present when the dismissal occurred in C.W., that C.W. was not a case where the prosecutor is needing to pursue an objection when simply asking for a written order of a case already dismissed and closed. Thus the prosecutor in C.W. actually had the opportunity to contemporaneously object (thus preserve the error) as opposed to trying to argue a "retroactive" objection or filing a motion for rehearing or reconsideration. She also tossed in a bunch of case law for the proposition that that the requesting municipal prosecutor invited the error.
(To Be Continued)
Part 2
Now of course, it is pretty well known that KFR is no fan of Miami Beach's municipal prosecution program. There is arguably financial incentive at play - KFR is permitted by statute to bill Miami Beach for municipal ordinance violations that her office handles (for sometimes hundreds of dollars), even when those cases end in nolle prosequi without much work. Even though KFR pretty much indicated she would KNP all of them for operational purposes, for lack of manpower to handle such "minor" matters. Municipal prosecution programs exist in many other counties in the state, but for Miami-Dade, this became its first one. And this program is probably equally hated by just about everyone. But that's neither here nor there.
Thus the existence of the program suggested that KFR's office doesn't have to be the sole prosecutorial entity "in town" which then might create some competitive sentiment that she would probably rather avoid - thus it would become an annoyance that she would probably prefer be dissolved and dismantled and just simply go away.
So seeing the legal stretch of the dissent, one can but wonder. In a case in which Judge Miller was not on the panel, this argument was not accepted at all despite the City sending the email requesting a written order without "retroactive" objection. City of Miami Beach v Lisa Boalt Brockhouse, No. 3D23-0568 (Fla. 3d DCA Jun. 19, 2024) ("As in City of Miami Beach v. Cosme, 49 Fla. L. Weekly D322 (Fla. 3d DCA Feb. 7, 2024), the trial court’s dismissal on its own motion and without notice or opportunity to be heard constituted a fundamental depravation of the City’s due process rights."). This case contained no dissent at all.
However, on a case handled by a different panel for which Judge Emas (himself a former APD and defense attorney) wrote the majority opinion in City of Miami Beach v Victor Guyton, No. 3D22-1875 (Fla. 3d DCA May. 15, 2024), the dismissal was reversed and found to be a due process violation in spite of the City sending the email and not making an objection or request for rehearing. That case involved a different former Miami-Dade ASA as sitting Third DCA judge on the panel, and Judge Miller's legal position re-emerged again, in the language of a special concurrence (meaning the judge still voted with the majority). It was written in the portion by the former ASA Judge, "However, I agree with Judge Miller’s dissenting views in Cosme that this error should have been found to be invited or unpreserved, id. at D323-324 (Miller, J., dissenting), and at a minimum, that in reversing the case on due process grounds, our court errs in relying on an argument advanced by the City for the first time in the reply brief, see City of Miami Beach v. Cosme, 49 Fla. L. Weekly D908a (Fla. 3d DCA Apr. 24, 2024) (Miller, J., dissenting from denial of rehearing or clarification)."
So far, the law in the Third DCA seems to be settled, that dismissing a case from the prosecution where the assigned prosecutor is neither noticed nor present, is a reversible due process violation for which the failure to make an objection in the simple request for a written order for an already dismissed case would not control the outcome right?
(To Be Continued)
Part 3
That is, until an appeal involved three former Miami-Dade ASAs as DCA judges sitting on the panel. City of Miami Beach v Bridgette Krystal Sprinkle, No. 3D23-252 (Fla. 3d DCA Mar. 20, 2024).
The case involved the same fact pattern as all the other cases discussed. The panel unanimously affirmed the dismissal, by PCA which gives the outcome no precedential effect, and there's no way to see why they ruled the way they did, as PCA's involve no decisional explanation.
For whatever reason, the City did not pursue options for rehearing or en banc, or what have you, to see if this might end up being a Conflict PCA. See https://www.floridabar.org/the-florida-bar-journal/the-conflict-pca-when-an-affirmance-without-opinion-conflicts-with-a-written-opinion/ for how that process works.
But it is also not hard to see why it would be problematic to make it precedent as applying to all prosecutorial entities - and why PCA is the only way to go. Could one imagine some random scenario where an ASA handling a very serious violent felony is out on vacation, and the case comes up on calendar without notice to the ASA, and the judge just comments out loud, that the case is wasting the court's time, and sua sponte decides to dismiss it without a well taken (c)(4) motion, stand your ground immunity motion, constitutional violation dismissal motion, or other valid legal motion, without any apparent authority? The prosecutor comes back from vacation, asks for a written order, and then on appeal told by the DCA, that despite this being a very serious criminal case, that by bypassing the step of registering an after-the-fact objection when getting the written order, the case is forever gone for failure to preserve the error despite the clear invasion of a prosecutorial function as well as blaring due process issue?
I certainly don't imagine that would go over well in any prosecutorial office in Florida, let alone KFR's office. And obviously, my whole point to this post is not to in any way, suggest anything wrong by an APD or defense attorney who pushes for this - they are doing their job. But I think KFR's office would hit the roof if this were made precedent for all criminal prosecutions.
But not so much, if the affected litigant is not KFR's office.
Whatever happens to Miami Beach cases are no business of mine - I do not work there and I have no interest. But I posit this as an example for the Kissimmee Kid's argument, that even multiple judges intended as a safety feature, can do as they wish based on the push and influence of a single judge (in this instance Judge Miller) - knowing it is not the law of their DCA, but reaching the desired result through a PCA which cannot be questioned, as might circumstantially be of benefit to some individuals politically.
Signed,
POD's Advocate
PCAs should just be done away with period. It’s insulting to defendants whose liberty and rights depend on the case and the lawyers that worked very hard on the arguments of the case. Flat out lazy and insulting.
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