Thursday, June 17, 2021
Monday, June 14, 2021
Intervention for a gun,
Priors, you better not have even one.
And even then its no guarantee,
your client will be accepted into PTD.
Before an ASA attempts to have a defendant considered for FIP, the ASA must first determine that:
- The defendant has no prior record, which we interpret to mean the defendant has no prior arrests (regardless of the disposition of the prior arrest(s)).
- The CCF must be a stand-alone charge and the gun cannot be stolen. The defendant can have no accompanying arrest charges, whether filed or no-actioned.
- Based on the facts of your case, the carrying of the firearm should/must be unintentional/inadvertent.
- If, and only if, you have a defendant who meets all of the above criteria, you must submit a PTI referral form directly to Deputy Chief Assistant Marie Jo Toussaint to have your defendant “considered” for FIP.
- An offer to be considered for FIP diversion will be made only after 1) the ASA has submitted to Deputy Chief Toussaint the PTI Referral form, a copy of the defendant’s prior record and the facts of the case ( “A” form); 2) those documents have been reviewed by Deputy Chief Toussaint; and 3) she advises you by email that your case will be submitted to an SAO Investigator.
- The email from Deputy Chief Toussaint will include information for you to provide to the defense attorney (and through him to his client the defendant) advising what is required to be approved. The approval will be contingent upon the investigation and evaluation of the facts by our SAO Investigator, confirmation of the defendant’s lack of a prior record and the result of the interview of the defendant by the SAO Investigator
For all pending cases, whether still on your pending caseload or presently in the pipeline with Pretrial Services and/or under review by our Investigations Unit, the defendant will be rejected and not accepted into FIP, if the defendant does not meet the above criteria, the defendant does not respond to the Investigator’s call, refuses to provide a sworn statement or if you did not follow the above process. If you have any questions with regards to the above, please speak to your Chief Assistant or Deputy Chief Assistant or Deputy Chief Toussaint.
Thank you in advance for your cooperation. Please feel free to forward this email to anyone you believe should have this information.
Friday, June 11, 2021
When we last left you, Lee Bailey had objected to the introduction of Dr. Umberger's testimony on the new test he had developed to find the poisonous drug that may have been injected into his wife.
Bailey asked for voire dire, told the Judge he needed just two questions, and Judge Hirsch said Bailey nailed it with the first question...
And now, the conclusion of Lee Bailey's defense of Dr. Coppolino as told by Judge Hirsch:
Dr. Umberger: Have you published your findings?”
And with that, the Coppolino trial was – or should have been – over. The answer, of course, was, “No.” Even before the days of computer research, diligent lawyers were able to go to the periodical-literature section of the library and to determine if the Dr. Umbergers of this world had published anything. And Dr. Umberger wasn’t about to perjure himself for the sake of convicting Carl Coppolino.
So the case was – or should have been – over. If Dr. Umberger hadn’t published his findings, then they hadn’t been read and reviewed by the scientific community. If they hadn’t been read and reviewed by the scientific community, then they couldn’t be generally accepted within the scientific community. If they weren’t generally accepted within the scientific community, then they weren’t admissible under the then-prevailing Frye standard for novel scientific evidence. If Umberger’s conclusions about finding the break-down components of succinylcholine chloride didn’t come into evidence, Dr. Halperin never got back on the witness stand to express an opinion about the cause of Mrs. Coppolino’s death. There would be, in short, exactly zero evidence of death by criminal agency. (The mysterious Rumpole, by the way, correctly guessed the question. Whoever that Rumpole guy is – you suppose he’s Roy Black? – he knows trial lawyering.) [Ahem...thank you.]
But Lee Bailey wasn’t done. He gilded the lily a little.
“Dr. Umberger: Are you prepared to publish your findings?” And the answer was: No. I have no idea how Bailey knew he could get away with that question.
But Judge Lynn Silvertooth also knew a couple of things, things the jury didn’t know. He knew that Carl Coppolino had murdered his mistress’s husband in New Jersey, and he knew that Lee Bailey had gotten him an acquittal for that murder. Now Lee Bailey was asking for, and by rights was entitled to, another acquittal for another murder that Coppolino committed.
Trial judges are sometimes tempted to slip a thumb onto the scale of justice. (Not me, but other trial judges are.) Denying Bailey’s motion for judgment of acquittal on a second murder of which Coppolino was certainly guilty was a temptation Judge Silvertooth couldn’t resist. So he denied the well-taken motion for judgment of acquittal, assuring Lee Bailey that he would have ample latitude to cross-examine Drs. Halperin and Umberger before the jury.
Audentes fortuna iuvat, said Virgil: Fortune favors the bold. In closing argument, Lee Bailey put that thesis to the test. He told the jury that there were only two possible verdicts, the judge’s instructions on lesser-included offenses notwithstanding. Either Carl Coppolino was guilty of first-degree murder and should be punished with death, or he was entirely innocent and should be sent home. There could be no middle ground. There could be no compromise.
It was a stunning gamble. And in truth Bailey was right. If Coppolino was guilty, he was guilty of a cold, calculating, first-degree murder. If he wasn’t guilty of that, he wasn’t guilty of anything.
The jury gave the matter due and deliberate consideration, and returned with a verdict of second-degree murder. It’s impossible, of course, but that’s the verdict they came back with, and that verdict spared Carl Coppolino a date with Ol’ Sparky. I’ve tried to figure out what the jurors meant by that verdict, and I can think of only one thing. It was their way of saying: Your client is guilty as Hell, Mr. Bailey. But you, sir, are a Hell of a lawyer.
Wednesday, June 09, 2021
Judge Hirsch accepted our invitation to write about Lee Bailey's representation of Dr. Coppolino:
There were actually two Coppolino trials. The first took place in New Jersey, and Bailey got his client an acquittal. Let’s skip that one for now (although when we’re having a class of Jack Pommeroy’s Chateau Thames Embankment sometime I’ll be happy to share some of Bailey’s tours de force from that trial).
The medical examiner who testified at the New Jersey trial was Milton Halperin, chief medical examiner for New York City and the self-described “world’s greatest medical detective.” (Yes, he actually describes himself that way in his autobiography, entitled, Autopsy. I mention that in case any of your readers were thinking of using that title for their own autobiographies. It’s taken.) He was furious that Lee Bailey had procured the acquittal of a palpably guilty man, and he was determined to do something about it.
Coppolino had been living in Florida for some time at that point. His wife had died in less-than-transparent circumstances. So Halperin took it upon himself to contact the State Attorney in southwest Florida – it may have been Joe D’Alessandro, or his predecessor – and demanded that he exhume the late Mrs. Coppolino’s remains and send them to him, Halperin, for autopsy.
Halperin’s examination revealed that there was a tiny area of discoloration in what, in life, would have been one of Mrs. Coppolino’s buttocks. After much consideration, Halperin hypothesized that Coppolino, who was an anaesthesiologist, had injected his wife with succinylcholine chloride, a substance that causes instant and symptomless death and then dissipates into organic components. The problem, from Halperin’s standpoint, was that there then existed no quantitative analysis for the break-down components of succinylcholine chloride – in other words, no scientific test to determine if there were lethally-elevated levels of those components in the body.
Halperin had on his staff a highly-regarded toxicologist, Dr. Joseph Umberger. Dr. Halperin took Umberger off all his other cases and ordered him to invent a quantitative test. In due course Umberger did so. And applying his test to what was recovered from the body of Mrs. Coppolino, he found deadly levels of the break-down components. Halperin, delighted, contacted the State Attorney’s Office in Florida, and Coppolino was indicted. As he had in New Jersey, Lee Bailey represented Coppolino.
Florida in those days was a common-law evidence state. For an expert to express an opinion, all the facts upon which his opinion was based had to be in evidence. What the prosecution envisioned, then, was the following: Halperin would testify to his autopsy, but not offer an opinion as to cause of death; he would then step down from the witness stand; Umberger would then testify to his findings and conclusions; at which point Halperin would be able to get back on the witness stand and express the opinion that Mrs. Coppolino had been murdered by the injection of succinylcholine chloride. (This sounds awkward to us today, but it’s how it was routinely done before the days of the Evidence Code.)
Halperin testified. Then Umberger was called. But before his testimony could be elicited, Lee Bailey told Judge Lynn Silvertooth (the current courthouse in Sarasota is named after him) that he had voir dire as to the witness’s testimony.
Voir dire? How much voir dire?
Two questions, said Bailey.
A judge can’t very well turn down a request for two questions-worth of voir dire, so Judge Silvertooth invited Bailey to proceed. And at the end of the voir dire, the case should have been dismissed. Truth is, Bailey had it in one. The second question was just showing off.
Care to guess what the first question was?
Monday, June 07, 2021
David Ovalle, one of the finest crime reporters in the nation misses nothing. Thus this tweet on breaking news in Miami's historic criminal courts. The Courts which tried Ted Bundy and Giuseppe Zangara (the putative assassin of Franklin Roosevelt as he toured Miami on Biscayne Boulevard) and many others now faces this uniquely 2021 issue. The news broke today, and while it is not Lee Bailey's cross in the OJ Case, or Roy Black in the William Kennedy Smith case, it merits nonetheless coverage as breaking news.
Thus this TWEET of Tonsorial Turmoil in Judge De La O's Zoom proceedings today:
If you haven't done so already, click on over to DOM's blog and read Roy Black's guest post on F. Lee Bailey who passed away last week.
Mr. Black's post and remembrances are valuable reading. Lee Bailey along with Edward Bennet Williams (read the biography "The Man to See"), was the first generation of criminal defense attorney superstars (OK Abraham Lincoln, Thurgood Marshall, and others have a place in the early 18th and 19th centuries but Lee Bailey is the first famous criminal defense attorney in the last half of the 20th century). Roy Black came along in the 1970s. As Mr. Black writes, Lee Bailey burst on to the scene in the 1960s with his successful defense of Dr. Sam Sheppard - in his first year out of law school no less. The defense spawned a successful TV series (The Fugitive) and set Bailey on a course of high profiled defense cases, many successful, but none undertaken with anything less than a full fledged fight for his client. None of this "sign and flip" nonsense that so dominates our honourable profession these days, especially in Federal Court. As Mr. Markus is wont to say "You can't win a plea" which surely was in the DNA of Lee Bailey.
Do not skip lightly over Mr. Black's recommendation to read the book about Lee Bailey's defense of Dr. Carl Coppolino "No Deadly Drug" which he rightly calls the best book on a criminal defense trial he has ever read - and we second that endorsement. We seem to recall a lecture on cross examination or experts by Judge Milt Hirsch where he recounts Bailey's destruction of a defense expert in the Coppolino case in two or three questions. Perhaps he will weigh in on that episode.
And finally there is the insight, said before by Mr. Black- but worth repeating- on his education as one of the finest criminal defense attorneys of his generation. It was Mr. Black's reading and re-reading of the books on Lee Bailey's trials and Bailey's practice treatises that formed and honed his skills- at a time when reading books was the principal way we all educated ourselves.
Like too many in our profession, Mr. Bailey came to a sad ending with legal issues, incarceration and disbarment. But those are small postscripts to a career that inspired a generation of criminal defense attorneys to believe that ours is an honourable profession and one worth dedicating a life to. Lee Bailey taught us that there is no case that is not worth defending; no case that is unwinnable; and no client that does not deserve our best efforts. Bailey taught us to not just be in court- but to APPEAR in court. That standing up and saying "Rumpole on behalf of the defense and we are ready for trial" was a moment worth savoring with meaning. That as lawyers we didn't just say something at the beginning of the trial- we DELIVERED an opening statement, carefully planned. That there is nothing better than seeing in the eyes of a witness fear as we rise to cross examine them; that when they shake or hang their head and admit their testimony on direct was not correct and the defense version of the events is what really occurred, or that the witness's version on direct is not believable, are moments that can be achieved by a well prepared criminal defense attorney. And that "NOT GUILTY" verdicts are not strikes of lightening, but are to be expected and achieved through fearless and dedicated work.
Go read Mr. Markus's blog and Mr. Black's post and it will start you week off right- even if you wear black robes to work or are a prosecutor.
Saturday, June 05, 2021
As of June 21, 2021, at 12:01 AM courts in Florida are back baby!
As per the order of the CJ of the Florida Supreme Court (Motto: "Remember us?") issued last week, Courts must implement these new procedures starting June 21, 2021, although they have until August 2, 2021 to do so. Here are the highlights:
Participants and observers MAY wear a face mask in Court. They do not have to do so (and the Governor is prohibited from doing so);
Participants may request to be physically distanced from each other. Rumpole routinely stays as far away as possible from court participants who wear black robes, so this is nothing new to us;
What about Zoom you ask? The CJ has ruled that CJ's of each circuit must develop procedures for continuing to use Zoom where helpful, so it's up to Judge Nushin "Zoom" Sayfie to implement Miami Zoom procedures;
Appellate proceedings may be remote or in person as per the CJ of each appellate court;
Jury selection may be done remotely if everyone agrees;
Bench trials and other non-jury trials like Parental Termination Hearings can be done remotely if everyone agrees;
There are a whole bunch of rules on civil cases requiring everyone to try and close the case quickly blah blah blah blah blah...;
SPEEDY TRIAL is suspended until "the close of business" (whatever that means) on October 4, 2021, for all people taken into custody on or before March 14. 2020 and January 3, 2022 for people taken into custody after March 14, 2020;
The time remaining in a speedy trial will be determined by the date it is back in existence, minus the time period of the extensions- which is this simple formulae:
THAT TEN DAY TIME PERIOD under the speedy trial rule to try a case when speedy trial has expired and a valid motion is filed is EXTENDED TO 30 DAYS and even then can be extended because of "crowded dockets", personnel issues, availability of courtrooms, basically any problem caused by Covid. In other words, if you think you're going to be slick and win a case on a speedy trial motion, the trial judge is going to extend the time period and write "BECAUSE OF COVID" in the order and that will be that.
So now we are ready; shoes shined; suits hanging in a closet unused for a year; files dusted off. Lets open the REGKB and PICK SIX (while socially distancing from you know who)!
Friday, June 04, 2021
There are very few times when one can point to words in a speech that made a difference. Coming in a strong but distant second place is Abraham Lincoln. His Gettysburg address, his second inaugural address, his letters to grieved mothers are words and letters and speeches that influenced history. The words were powerful, but they saved a county. Winston Spencer Churchill, Prime Minister of England, saved the western free world when he addressed parliament on June 4, 1940.
The stage on June 4, 1940 was that England was alone and in deep trouble. The British had 300,000 troops representing the bulk of their army trapped on the beaches of Dunkirk, France. Belgium had fallen to the Nazis. So had France and Poland. Europe was gone. England, an island nation, was all that was left in Europe and England was facing invasion, starvation, and a German naval and submarine blockade. London was being bombed every night. The United States, under the laws of the neutrality act, could not and would not help. "Lend lease'- the program that gave the British naval war ships and planes and ammunition was not yet in effect. England, nearly broke, had to pay cash for any supplies the US agreed to sell. And England and England alone had to see to the safe transfer of those supplies through the German naval blockade and submarine wolf-packs.
It was when things were bleakest that Churchill addressed Parliament. Having become PM 24 days before, facing the loss of the British Army and constant nightly bombing, there was strong sentiment in his own party to sue for peace. Lord Halifax, often mentioned as candidate to replace Churchill as PM, part of Churchill's war cabinet, and a friend of the King, was pushing for Churchill to sue for peace with Hitler. Many in Churchill's party shared the same sentiment- the wounds of WWI still being fresh, and facing the loss of most of the British army. The days from May 26 to June 6 1940 arguably represent the most challenging two weeks any leader of any country has ever faced.
Left with nothing but his own words and power of speech, Churchill rose as PM to address parliament on June 4 1940. Churchill needed to warn the British public that France was going to fall, the English army was facing obliteration and a total loss AND that it did not matter and England would go on fighting. His audience was three fold. The British people, who he intended to inspire while preparing them for the worst; President Roosevelt and the politicians who favored isolationism who Churchill needed to convert into supporting England; and Hitler, who Churchill needed to dissuade from deciding to invade England.
As to Roosevelt and the isolationists, Churchill needed to let them know that England would never surrender. That any money, arms and ammunition lent to England would not be lost; that the British would fight to the last man AND even then would never surrender. Here is what he said:
First he spoke to his own people, letting them know England had faced invasion before:
Turning once again, and this time more generally, to the question of invasion, I would observe that there has never been a period in all these long centuries of which we boast when an absolute guarantee against invasion, still less against serious raids, could have been given to our people. In the days of Napoleon, of which I was speaking just now, the same wind which would have carried his transports across the Channel might have driven away the blockading fleet. There was always the chance, and it is that chance which has excited and befooled the imaginations of many Continental tyrants. Many are the tales that are told. We are assured that novel methods will be adopted, and when we see the originality of malice, the ingenuity of aggression, which our enemy displays, we may certainly prepare ourselves for every kind of novel stratagem and every kind of brutal and treacherous manœuvre. I think that no idea is so outlandish that it should not be considered and viewed with a searching, but at the same time, I hope, with a steady eye. We must never forget the solid assurances of sea power and those which belong to air power if it can be locally exercised.
Churchill had supreme confidence in the British fleet and was arguably the first British politician to recognize years before that air power would be decisive in the next war. Churchill had as strong belief in the ability of the RAF to defeat the Luftwaffe as he had in the English navy to defend his island.
Next he began the theme of never surrendering even if England received no aid:
I have, myself, full confidence that if all do their duty, if nothing is neglected, and if the best arrangements are made, as they are being made, we shall prove ourselves once more able to defend our island home, to ride out the storm of war, and to outlive the menace of tyranny, if necessary for years, if necessary alone.
[you have to hear Churchill, slowing his speech down so Roosevelt and Hitler understood in no uncertain terms his resolve to fight for years...and to fight alone. These words are pure genius]:
[repeat those words to yourself- "to ride out the storm of war, and to outlive the menace of tyranny, if necessary for years, if necessary alone." they are so very powerful.]
At any rate, that is what we are going to try to do. That is the resolve of His Majesty's Government – every man of them. That is the will of Parliament and the nation. The British Empire and the French Republic, linked together in their cause and in their need, will defend to the death their native soil, aiding each other like good comrades to the utmost of their strength.
And now, rising to the challenge of his words and his tasks ahead, Churchill brings poetry and his genius to the English language- "mobilizing the English language and sending it into battle": a phrase which was attributed to Halifax in the movie Darkest Hours, but was most likely said by others and repeated by President Kennedy. This paragraph of the speech arguably saved Western Civilization when it was on the brink of falling to Nazism. These words are some of the greatest ever spoken in the English language. Their importance cannot be overestimated. They rallied the English public and they rallied the world to the cause of freedom. Read them many times, as we do, and rejoice that there was a human being who could think and write and speak such words in one of the darkest hours of humanity:
Even though large tracts of Europe and many old and famous States have fallen or may fall into the grip of the Gestapo and all the odious apparatus of Nazi rule, we shall not flag or fail. We shall go on to the end. We shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our island, whatever the cost may be. [Look at how Churchill interweaves being the underdog- a small island nation - and yet having the strength and resolve to never give up "whatever the cost may be."]
We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, and if, which I do not for a moment believe, this island or a large part of it were subjugated and starving, then our Empire beyond the seas, armed and guarded by the British Fleet, would carry on the struggle, until, in God's good time, the New World, with all its power and might, steps forth to the rescue and the liberation of the old
That last sentence is overlooked for the genius of political speech that it is. Churchill, without ever naming the United States, is telling Roosevelt and the world that he trusts that the "New World" (meaning the US) "with all it's power and might" will step forth to rescue and liberate Europe. He is expressing faith in the US when the US itself did not have the faith and strength at that particular moment to save Europe "from the grip of the Gestapo and all the odious apparatus of the Nazi rule."
Those words saved Western Civilization when the man and the moment met, and Churchill who had such faith in his abilities, fulfilled what he always believed was his destiny ("We are all worms, but I believe I am a glow-worm.).
It's the greatest speech ever given. There is no second place.