TAKE THE JnJ JAB

 In preparation for our ground breaking, earth-shaking, robe-wearer-quaking post on Monday, we use this Sunday to clear up some loose ends. 

First, Diamond Joel Hirschorn, ever the class act, wrote to us privately that the real story behind the discovery that the trial court neglected to read the reasonable doubt instruction was a little less dramatic than our post, which took some literary-license with the scenes of discovery, not to mention the 3rd DCA deliberations (and perhaps it is time to give kudos to the panel- CJ Kevin Emas,  and neewbies and former prosecutors Flor Lobreee and Monica Gordo.  We expected no less from Judges Lobree and Gordo  as former prosecutors. In their time at the SAO  they were known as reasonable and fair and it was nice to see them in the majority here.  BTW- if you like reading 3rd DCA opinions, keep an eye on Judge Gordo- some of her dissents have been superb and she is making a reputation for herself as an original thinker. It is gratifying to see. 

In his email to us, Diamond Joel gave all credit on the briefs to his co-counsel Mr. Sarangoulis, and had some mild criticism for the State not admitting error. We find the last part troubling. A man is serving life in prison, and the fundamental basis upon which our entire criminal justice system rests- a jury considering whether the prosecution proved their case beyond a reasonable doubt- was not in play during the trial. And despite that, the State - with their unsettling blood lust, sought to keep Mr. Phelps in prison until he died. The Florida Bar should be investigating whether these state bureaucrats should be held accountable for their lack of prosecutorial professionalism, the first requirement being sworn to ensure that the laws of the State are followed and executed. On this point, they failed miserably. Not for the fact that the RD instruction was not read, but for not immediately agreeing that a new trial was in order. 

Second, many people are emailing us asking if they should take the Johnson and Johnson vaccine or wait for the Pfizer/Moderna jab. The answer is an unequivocal YES.  The main reason is this- ignoring all of the other numbers for a moment, the JnJ vaccine is 100% effective in stopping hospitalizations and death for Covid19. That means that no one- zero, nada, was hospitalized or died after getting the JnJ vaccine, even if they got Covid. That means everything. 

Now lets take a deeper dive into the numbers. First praise for Pfizer. Not only are the P=jabs 95% effective against Covid19, but those numbers have been confirmed in real life field testing in Israel in which, reviewing over 250,000 people who got both P-Jabs in the last few months, the vaccine approached 98% efficacy. These numbers are more recent than the P-jab studies conducted 8-10 months ago, in the US, Europe, Africa and South America when there were less and less serious variants. So the Pfizer vaccine works and is working now. 

The JnJ jab was tested more widely and more recently  than the Moderna shot, which was only tested in the US, and also was tested at a time when there were less and less serious variants. Preliminary data shows that the Moderna vaccine is very effective against the deadly South African variant. which is good. But the final thing to remember is that with all three vaccines you are comparing Broward Judges to Miami Judges- there is no comparison. One set of the Judiciary will take lawyers who are from another county out of turn and another won't. You figure it out. 

If offered the JnJ jab, just keep telling yourself this- a month after I get this vaccine, I have zero chance of dying from Covid. Period. End of story. Roll up your sleeve, grit your teeth, get a lollipop and leave with your life protected. 

It is fair to say we are at a tipping point in our battle for Covid- but there is no doubt how it will end. We will prevail- we can make boosters and new vaccines that will shut this sucker down and a year from now, someone dying from Covid will be a rare and isolated event. 

WE CLOSE WITH THIS:

What would have happened if Covid came in 1977, or 1987, or even 1997? Would the Justice system have survived? In 1977 or 1987 most people didn't have cell phones (remember beepers?). In 1987 laptop computers were a rarity, there were no Ipads, and we accessed the internet with a  dial-up modem. Even in 1997, internet access and speeds were such that we could not have streamed Zoom hearings. And there was no e-filing at the time. So what would have happened? The clerk's office would have to had a person on the front steps, wearing a mask that they could not buy from Amazon, taking filings. We cannot even imagine the lines at Eckards (remember them?)  to buy a box of masks. 

Court hearings to process new arrests would have to take place in Lot26. Regular calendars would have to be held across the street under tents, or in the Orange Bowl. Even the dissemination of information about what was happening would have been near impossible. The Herald (gasp!) would have played a crucial role in telling people where to go and when. 

This could have been worse. We did not have the mRNA technology that the Pfizer and Moderna vaccines use. The JnJ weakened adenovirus would have been the first jab created and without computer monitoring and reporting of events, it would have taken a year to collect, collate and analyze the data.  And in any of those decades, 9 out of 10 vaccines routinely failed. So let us take a moment and count our blessings. We are well on our way to being back, to having Rumpole prowling the bars of jury boxes, growling out objections, crushing lying state witnesses with a withering glare, and arguing the reasonable doubt instruction-whether the judge deigns to give it or not. 

Stay safe. 

PVH CAN ZOOM

 It's a win for Miami Judge Miguel De La O and a loss for FACDL and attorney Dan Tibbitt who did a great job, for free, and who usually wins his appeals. No shame in taking this loss on what was an uphill battle. 

On the surface it seems like an easy appeal and an easy opinion. 

But then Judge Emas, writing for the majority, wades into dangerous waters. He calls Due Process a flexible concept: "The concept of due process is not rigid or static, but flexible and dynamic."  

Uhho.

 Federalist Society members pick up your pitchforks. Calling a constitutional concept "flexible" is like calling the Constitution a living and breathing document- which are liberal code words for interpreting the Constitution based on the personal opinions of liberal judges, instead of what can discerned about the intentions of the  dead farmers who wrote our Constitution.  

What happened to just calling balls and strikes?  What one judge bends due process concepts to reach a decision in one direction, another judge can bend in another direction. Judge Emas- Appellate Yogi. 

As much as we respect Judge Emas, his concept of Due Process  and his decision is dangerous. We do not wish to place the concept of Due Process into the hands of judicial sculptors who will mold Constitutional protections like a lump of wet clay on a potters wheel. 

The rest of the opinion reads like a Covid Mea Culpa (no blogger turns an alliterative  phrase like we do). We have a pandemic (despite Governor no Mask saying we don't).  Probation Violation Hearings are not like trials. They are afforded less protections.  The rules of criminal procedure allow for electronic appearances, and thus appearing electronically is just like appearing in court, which means, especially during a pandemic, the right to be present in court is satisfied when Judge De la O orders you to do a PVH on Zoom.  We will not take Judge Emas to task for his recitation of PVH case law. The law is horrible. Judges can and do revoke probation and sentence defendants to life or near life sentences on the flimsiest of evidence, but this was not the case to fix that. 

For those criminal practitioners who are waiting smugly for jury trials to resume and then intend to drop dozens of speedy trial demands, you are warned. The 3RD DCA has little tolerance for Constitutional rights in the time of a pandemic. When your judge tolls speedies because she is overwhelmed with trials and finds the tolling to be an exceptional circumstance, good luck with your writ to the 3rd. We will give your the result now: DENIED. 

Speaking of Writs, Judge Gordo concurred in the result only, finding that a writ was not the appropriate remedy. She may be right. “A writ of prohibition is an appropriate, if extraordinary, remedy that lies when a lower court is without jurisdiction or is attempting to act in excess of its jurisdiction.” Durham v. Butler, 89 So. 3d 1023, 1025 (Fla. 3d DCA 2012). 

This case does not seem to be addressable on a writ of prohibition. But Judge Gordo had bigger conservative fish to fry. 

Her Federalist Society roots showing, having obviously meditated before a picture of Justice Scalia, Judge Gordo took a shot at the majority opinion. It's a concurrence sure to warm the hearts of conservative Governors looking for a Supreme Court Justice: 

 Thus, I decline to join the majority’s analysis, particularly to the extent that it negates a defendant’s constitutional rights by balancing them with the competing interests of the temporary pandemic. “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” Ex Parte Milligan, 71 U.S. 2, 120–21 (1866)

No balancing of flexible Constitutional concepts for Judge Gordo. Just balls and strikes please. Due Process means what the framers said it means, and it doesn't mean anything more or less in a pandemic. 

Order Denying Writ by HR on Scribd