"THERE ARE NO WINNERS IN THIS CASE"

THE CAPTAIN REPORTS:

IT'S A SAD, SAD, SAD, SAD, WORLD .........

Just over three years ago, in July of 2011, the fate of two people, who did not know each other, collided at the intersection of Lejeune Road and Aledo Avenue, in Coral Gables, at 4 o'clock in the morning.  The results were nothing short of catastrophic.

Ace reporter David O'Valle, (who recently hit the 5,000 mark for twitter followers), covers the story in the Miami Herald here. 

Peter Munoz, 27, was a police officer employed by the Coral Spring PD.  By all accounts he was a good cop with a great career ahead of him.

Jenny Gutierrez, 23, was a single mother of a three year old girl.  She was employed as a paralegal and she was also enrolled in school at Miami-Dade College.  By all accounts she was a good person, a great mother, and she was working hard to provide for a better life for herself and her young child.

Munoz was traveling Southbound on Lejeune.  According to the accident reconstruction investigation, he was driving his vehicle at a maximum speed of 56 mph in a 40 mph zone.  He was also under the influence of a large quantity of alcohol.  His blood, taken after the crash, showed a BAC of .229, nearly three times the legal limit.

Gutierrez was traveling Eastbound on Aledo.  She entered the intersection immediately in front of the path of Munoz.  She violated his right of way.  She was also operating her vehicle with a suspended license.  Toxicology results performed by the MEs office indicated positive for both Xanax and Cocaine.

The investigation also showed that there was a 6 to 8 foot hedge that likely obstructed the sight of Gutierrez's vehicle as she was pulling into the intersection to turn left and head Northbound on Lejeune.

Munoz was fired shortly after his arrest.
Gutierrez was pronounced dead at the Ryder Trauma center two hours after the crash.  Her daughter is being raised by Gutierrez' mother.

In 2012, defense attorney Alan Ross filed a Motion to Suppress the Blood.  Judge Murphy, after hearing testimony that the first officer on the scene did not detect any signs of impairment, that the THI did not believe he had PC for the search warrant when he submitted it to the judge, and after finding that the warrant, (which was the basis for the collection of the blood evidence) lacked key essential facts, granted the Motion to Suppress.  The State dropped the DUI Manslaughter charge.

This week, the state dropped the remaining charge of Vehicular Manslaughter.  The speed, by itself, was not enough to establish the element of recklessness necessary to obtain a conviction.  (See Luzano v. State, 3D13-1678, Oct. 1, 2014).

We have been quoted in the press on more than a few cases as saying that "there are no winners in this case".  It appears that that statement certain would apply here.

It's a sad, sad, sad, sad, world.

HAPPY 25TH BIRTHDAY TO MIAMI DADE DRUG COURT .......

Crack reporter for the DBR, Julie Kay, wrote a great story about 3rd year law student Shayna Finkelstein, who recently was in Miami with her University of Florida mock trial team.  The team won first place in an ABA southeast regional mock trial competition.  The younger Finkelstein, daughter of famed Help Me Howard Broward PD Finkelstein hopes to follow in her father's footsteps some day and says she will be applying for a job as a PD in Miami and Palm Beach County.

But, here's the problem with Kay's article.  In it, she states that Finkelstein "was instrumental in forming Florida's first drug court ... in Broward County".

Veterans' of the Metro Justice Building (MJB), (yes, that was the name of the building from it's opening in 1962 until it was renamed in 1992 after six term State Attorney Richard E. Gerstein, who served as the elected chief prosecutor from 1956-1977), know that the "first" Drug Court in Florida, and in the United States, opened in the MJB in 1989.   It wasn't until two years later that Broward followed suit; (Las Vegas had the second ever drug court, with Broward's coming next after that).  In the past 25 years, the overwhelmingly successful Miami-Dade Drug Court has had only four judges including Judges Stanley Goldstein, Jeffrey Rosinek, Deborah Labora-White, and current Drug Court Judge Jeri Beth Cohen. 

Julie's a great reporter, but she needs to get her facts straight.   Credit goes out to Chief Judge Gerald Wetherington, Admin. Judge of the Criminal Division Herb Klein, Public Defender Bennett Brummer, and State Attorney Janet Reno for having the vision to create the ground-breaking program 25 years ago.  Their slogan is appropriate: "Miami's Drug Court - saving lives, one addict at a time".  Happy Birthday Miami-Dade Drug Court - you've come a long way.

CAPTAIN OUT .........
Captain4Justice@gmail.com

SCRAM

Whist perusing the FACDL emails last week (for which we are grateful to our readers who forward them to us. Nothing against FACDL personally, but we just don't join organizations. It's a religious thing....sort of) we came across several emails which, if you didn't read closely, you might have thought the participants were discussing the imminent meltdown of a nuclear reactor. Terms like "SCRAM" and BOT and IID were being tossed around with frequency and alacrity.

We give FACDL a hard time, but the truth is that the muckity-mucks do what they do for free, donating their time and efforts on behalf of the defense bar and our clients.

Thus, we give FACDL Miami their due, and recognize their current president who stepped in last week and mediated an  impending contretemps over what appears to us (with admittedly limited knowledge in this obtuse area of the law) to be the equivalent of PTI for DUI, known as BOT. OK? Now scram. 

Bot letter from Justicebuilding


Perhaps the next time you see Mr. Pereira you should buy him a beer. But not too many, else wise he might need to enroll in BOT. 

GOODBYE
To the great blog Hercules and the Umpire, run by the exceptional US District Judge Richard G. Kopf.  Judge Kopf ended his remarkable blog on January 1, 2014. You can still peruse the blog and comments (and find an exchange between Rumpole and the Judge on his last post, disproving the notion that we're never nice to those who wear the black robes) and we highly recommend the blog post on sentencing, where the Judge reflected on the harsh sentence he gave a defendant who went on to be released, graduate law school, and receive a prestigious clerkship with a DC Circuit Judge.  

Well done Judge Kopf. Well done indeed. 

See you in court. 

TRACY MOURNING CLOSE OUT MEMO

Attached is the close-out memo of the SAO which dropped the DUI charges against former Miami Heat star Alonzo Mourning's wife. 
We'll leave it to the DUI mavens to debate the particulars of the case. This is way outside of our milieu.
The question is whether this case, with conflicting evidence at best, was treated like the hundreds (thousands?) of other DUIs that were similarly situated? Over the past decades we've tried a few DUIs to jury with facts much worse than this for the state and  the schlepper ASA in court always had the same mournful song:"My supervisor won't let me do anything other than try the case." So, is this case different? A more reasonable officer? A new attitude at the SAO? 

BETTER LATE THAN NEVER

BREAKING: ARNOLD LOVE CHILD!

Last week we learned that the former Governor of California had announced that he and his wife Maria Shriver were seperated after 25 years of marrriage. Now we know why. Ten years ago the Terminator fathered a love child with the family maid.

Sort of gives a new twist to "preserving domestic tranquility."

Sigh. Another Republican in a domestic scandal.

The Herald finally reports on the SAO's much discussed (in these pages) new diversion policy for first time DUIs. The article is here.

The Herald is also covering the impending impeachment of President Clinton.

Interesting to note that ace DUI defense attorney Richard Hersch is in support of the program:

Defense lawyer Richard Hersch called Miami-Dade’s new program a “good thing.”

“The vast majority of first DUIs are people who make stupid mistakes. Turning them into criminals doesn’t make any sense. A good number of them are going to get off because an officer doesn’t show, and evidence falls apart. What happens to those people? They’re not on the radar, and they’re not going to get treatment,” Hersh said

The program is bound to be bad for business for attorneys who concentrate in DUI defense as Mr. Hersch does. Maybe he knows something about his pending application to be nominated to the Circuit Court that we don't?

Mr. Hersch, along with Judge White-Labora and attorney Michael Hanzman all have their applications before the Governor for the late Judge Skip Gross's seat.

Meanwhile, MADD is against the program as it does not mandate a five year prison sentence for anyone who thinks of a beer while driving.

There's always Broward.

See you in court.

HYPOCRISY: DUI STYLE

BREAKING: HOT NEW RUMOR- LONG TIME 3RD DCA JUDGE DAVID GERSTEN TO HANG UP HIS WORD PROCESSOR FOR PRIVATE PRACTICE. He will join Donner and Dancer and Blitzin at the north pole.....woops...he will join Bilzin, Sumberg Baena Price & Axelrod, LLP. His last day to vote to affirm is July 5, 2011.

Attention: The Colonel Of County Court has an announcement:

DUI DIVERSION PROGRAM IN EFFECT AS OF TODAY:

Up through Monday May 2, 2011, if you had a client who had a first DUI (simple case- no accident, no injuries) and the case went to trial and you lost, the prosecution would ask for jail (up to six months) and Judges would normally give jail and everyone would join in the fiasco that the client was not being punished for going to trial. No one would mention that the plea offer seconds before the jury was brought down was a non-jail offer. But the Judge and prosecution would go out of their way to justify the punishment based on "the facts of the case."

No more. As of today, Monday May 9, 2011, DUI DIVERSION is now in effect. Your client, if he or she jumps through some hoops and pays a boatload of money (it's always about money Rumpole, isn't it?) and has DUI in which there is not an accident or an injury, they will get a reduction to a reckless driving and a withhold of adjudication.

How will these judges and prosecutors ever be able to look at themselves in the mirror again based on how they treated first DUI offenders who had the temerity to demand the state prove the case beyond a reasonable doubt?

Nota Bene: This is a Dade County program and not statewide. Although Orlando has a diversion program as well for DUIs.

That is all. Dismissed. And remember: there's gold in them there misdemeanors, just not as much as there used to be in DUIs.

Rumpole says: We never understood how you could steal a car and get diversion for a felony first offense, but not get diversion for a misdemeanor.

DUIS DOOMED?

The Armando Gutierriez who was indicted in New Mexico and is a political consultant there and who may have some ties to South Florida is NOT the same Armando Gutierriez who runs many judicial campaigns in Miami.

If DUIS and something called an "intoxilyzer" are your things, then courtesy of the Broward Blog here is a North of the Border Judge's ruling throwing out breath tests because of something like they forgot to feed the hamster on the wheel inside the contraption.

Many of you remember Ted Klein. Ace lawyer. Very well respected. Got his dream job as a federal magistrate only to have the building he presided on kill him with mold. The wrongful death lawsuit filed in federal court was dismissed last week. The DBR article is here.

Ted was killed by the negligence of federal managers who knew about the mold problem in the courthouse and did nothing about it. It's more than a damn shame- It's a &!*$%&)*&* Tragedy.

Just in case you missed it, Phillies second baseman Eric Bruntlett accomplished for the first time since 1927 an unassisted triple play to end the game in the ninth inning of the Mets/Phillies game on Saturday.

Coming this week: CHAOS AT THE PDS OFFICE. Silent Charlie won't talk, but others have and the stories we hear. Morale at the bottom. Dress codes being enforced for jail visits. Who got raises and who didn't and why. And what about that hush hush sexual harassment complaint? We're getting the details. Stay tuned.