MILT HIRSCH'S CONSTITUTIONAL CALENDAR ..... & A POSTSCRIPT ON JASON BLOCH .....

 

THE CAPTAIN REPORTS:

MILT HIRSCH'S CONSTITUTIONAL CALENDAR .....

John Provoo passed away 23 years ago this week. Who is John Provoo you ask:

"In the weeks and months before December 7, 1941 – that “day that will live forever in infamy” – the plan was simple.  When the armies of Imperial Japan came sweeping through southeast Asia, the American forces based in the Philippines would fall back upon positions in and around Manilla Bay, there to await rescue by America’s Pacific Fleet.  The plan was simple because it had to be.  America’s military presence in that part of the South Pacific was inadequate for any purpose but tactical retreat, and Americans burdened by the Great Depression were in no mood to fund an expanded military presence on the far side of the globe.

In the wake of their surprise attack on Hawaii, the Japanese destroyed Clark Field, America’s airbase in the Philippines, as well as other military and naval installations in and around Manilla Bay.  The Pacific Fleet, which according to the plan was to rescue the American forces in the Philippines, had been sent to the bottom of Pearl Harbor.

American and allied forces fell back upon such positions as were available to them, chiefly upon a barren rock called Corregidor.  Bereft of supplies, bereft of reinforcements, bereft of hope, they held out for four full months, obliging the enemy to engage them until April 9, 1942.  The fate that awaited the souls who surrendered was reported in the American press as the “Bataan Death March.”

During and after the Death March one American soldier, John Provoo, formed an alliance with his Japanese captors.  He was given decent nutrition and sanitary living conditions.  In return, he acted as a guard and informer against his own comrades, and later even made radio broadcasts for Imperial Japan.

It was not until 1949 that the United States Department of Justice was prepared to go forward against Provoo on charges of treason and related crimes.  The delay was entirely understandable.  Provoo’s crimes, committed in 1942, were beyond the reach of the law until the war ended.  Even then, there were military, economic, and other claims on the nation’s post-war attention that took priority over the prosecution of Provoo.  And when prosecutors did begin to assemble their case, they had precious little to work with: most of the witnesses were dead, and many of the survivors were in far-off Japan or Australia.  

In the meantime, on September 5, 1946, Provoo had found the perfect hiding place: incredible as it seems, he had quietly reenlisted in the United States Army.  He was stationed at Ft. Meade, in Maryland.

In June of 1949, the Department of Justice arranged to have Provoo taken into custody at Ft. Meade; transported under guard to Fort Jay, Governors Island, New York; and ordered to accept an “undesirable discharge” from the Army.  He was then turned over to agents of the F.B.I. who arrested him for treason.  Provoo was tried in the Southern District of New York, convicted, and sentenced to life imprisonment.

Provoo’s lead counsel on appeal was George A. Spiegelberg.  Spiegelberg, the grandson of German-Jewish immigrants, was a Harvard Law grad; served prominently in World War II; and after the war was among the founders of the law firm that is today Fried, Frank .  He had little criminal-law experience, but when the Second Circuit appellate panel – an all-star team of Swan, Medina, and Harlan – asked him to undertake Provoo’s appeal, he agreed to do so on condition that he and his colleagues receive no compensation at all.  He would represent Provoo for principle, but not for money.  

On appeal, Spiegelberg had a powerful argument grounded in 18 U.S.C. 3238, which at that time provided that, “The trial of all offenses begun or committed . . . out of the jurisdiction of any particular state or district, shall be in the district where the offender is found.”  Provoo was “found” at Ft. Meade, in the District of Maryland.  His travel to New York was a contrivance of the Department of Justice.  It could not create venue.  In the words of the appellate court:

“We cannot blind our eyes to the fact that the real purpose in bringing [Provoo] to New York was to meet the wish of the Department of Justice to have him tried for treason under the indictment subsequently filed here.  Consequently we hold that the continuance of Provoo’s restraint in Ft. Meade . . . for the purpose of bringing him to New York for trial, was an apprehension for treason and that he was ‘found’ in Maryland within the meaning of the venue statute.”  United States v. Provoo, 214 F. 2d 531, 538 (2nd Cir. 1954).  

The Second Circuit’s opinion reversing Provoo’s conviction was dated August 27, 1954.  Of course the appellate ruling did not bar re-trial; on the contrary, it invited it.  On October 27, Provoo was indicted in the District of Maryland.  

The lawyers who represented him there dropped a bombshell: they moved to dismiss the charges against him on constitutional speedy trial grounds.  See Petition of Provoo, 17 F.R.D. 183 (D. Md. 1955).  In essence, the motion to dismiss claimed that the delay of approximately five years associated with trial and appeal in New York had prejudiced Provoo’s defense irremediably.  The motion identified defense witnesses who had died, and evidence that had become unavailable, in the intervening period.  

The resolution of the motion would turn in substantial part on the government’s reason for having Provoo transferred to New York for trial.  In the America of the 1950's, all television and radio networks were headquartered in New York City, as were several of the nation’s largest daily newspapers.  It was almost certainly the case that the prosecution’s real reason for trying to manufacture venue in New York was so that a notorious traitor could be tried and convicted before the largest possible audience.  

The Maryland case would proceed before U.S. District Judge Roszel C. Thomsen, who had been on the bench for no more than eight or nine months when the case came before him.  But what Judge Thomsen lacked in experience he made up for in fidelity to the Constitution.  To the unspoken argument that so vile a traitor as Provoo should not be permitted to go unwhipped of justice for a violation of his right to a speedy trial – a violation of the sort that the lay public refers to as a “technicality” – Judge Thomsen replied: “The offenses charged could not be more serious.  But it would be a poor tribute to [a fellow-soldier whom Provoo was accused of betraying] to deny to this defendant the rights for which [that fellow-soldier] gave his life.”  Petition of Provoo, 17 F.R.D. at 196.  He explained:

“It . . . appears that Provoo . . . was taken to New York in September, 1949, charged with treason, and held in custody for more than five years before being indicted and brought to trial in a district having jurisdiction to try the case.

“The government must have known that venue in New York was at least doubtful . . . yet the government caused Provoo to be taken under guard from Fort Meade to Fort Jay, for the supposed advantage of proceeding in New York rather than in Maryland.  It therefore appears that a large part of the long delay – at least five years – has been due to the deliberate choice of the government, exercised for a supposed advantage.

. . .

“. . .  The long periods of imprisonment have caused other prejudice to the defendant beside the deprivation of his freedom, with a capital charge hanging over him.  He has been handicapped in his ability to locate and keep in touch with possible witnesses.  But even more serious has been the effect on Provoo himself. . . .  His ability to cooperate with his counsel in preparing his defense, and to testify in his own behalf with respect to matters which occurred from 1942 to 1945, has obviously deteriorated during the years in prison.”  Id. at 195.  

The case was dismissed.  Provoo went free.  But his story doesn’t end there.

It ends with a small piece in a Honolulu newspaper – just a small piece down in the corner on the obituaries page.  It was dated August 28, 2001, exactly two weeks before the debacle of September 11, and it noted the quiet death of an 84-year-old Buddhist priest at Hilo Medical Center in Hawaii.  His name was John Provoo, and he was buried at Hawaii Veterans’ Cemetery. "

JASON BLOCH, POSTSCRIPT:

The Comments section from our last post was filled with a back-and-forth about Judge-Elect Jason Bloch. (To the educated reader it would appear that Jason or someone very close to him wrote many of the replies to the somewhat negative comments about his last stint on the bench, how he won the election this time, his net worth, how he earned that money, and on and on and on).

As Joe Friday liked to say "just the facts". So here are the actual facts:

Jason Bloch reported raising $13,300 for his campaign. He contributed (loaned his campaign) an additional $170,975. He spent $313,978 on his campaign. (I have not figured out how that is actually possible - he spent $129,703 more than he had in his campaign account. Maybe Judge Bloch can weigh in on that matter in the Comments section or privately email us).

His opponent, Bonita Jones-Peabody, raised $50,270 and loaned her campaign $80,025. She spent $90,790.

According to the publically available documents, Jason's net worth indicates he had about $68,000,000 as of December 31, 2023. How he acquired that wealth has also been the subject of debate in the comments. But, strictly for argument's sake, who cares. If Jason Bloch wants to serve the public as a judge, and if the people of Miami-Dade County choose to elect him, then why does it matter how much he is worth on paper, or how he acquired that money.  Certainly, his abilities on the bench are fair game, and he will once again be judged by the attorneys that appear before him over the next six years. But his net worth - sounds like just a little bit of jealousy out there.

As for past elections, Jason ran twice in contested elections for Circuit Court Judge. He spent 20 years working at the Miami-Dade County Attorney's office before being appointed to the bench by Governor Rick Scott in 2014.

Two years later, in 2016, he ran as the incumbent against challenger Marcia Del Rey. Bloch lost that election 52% - 48%.

In 2022, Bloch challenged incumbent Judge Oscar Rodriguez-Fonts. Bloch lost that contest 50.4% - 49.6% (a total of 262,589 votes were cast - Bloch lost by 1,851 votes).

Those are the facts.

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

A FEW OF LEAST FAVOURITE THINGS OF JUDGE MILTON HIRSCH

UPDATE: THERE IS AN AMENDED ORDER BY JUDGE HIRSCH which has what has rapidly become an internet/legal phenomenon with the now famous "needle and haystack" reasoning, soon to be etched in the pantheon of legal analysis. 

InReSearchWarrantMarch14 15PDF Updated by Anonymous PbHV4H on Scribd

There are a few things that our Judge Milton Hirsch does not like. These items are well known 

He does not like hitters who do not run out a ground ball. 

He does not like split infinitives. 

He does not like Fingerprint evidence. 

He does not like abridged editions of Shakespeare (neither do we). 

And now we know he does not like search warrants that ask for ALL of the target's social media records.  (existing as we do in cyber-space, we don't like these either). 

Particulary, the Judge does not like that the warrant applications ignore the requirement that the warrant identify the documents to be seized "with particularity" (pun intended by careful design). 

Amongst the many quotable highlights by the Judge, who when he was a lawyer was known as "The Dr. Ruth of the Fourth Amendment" [FN1]: 

The warrant in this case provides that, “This court finds that it is impractical for [Meta] to sort the evidence of the articulated crimes specifically sought herein from innocent or innocuous documents or records intermingled therewith.” When, and upon what factual predicate, did I make this finding? I conducted no hearing. I received no evidence. I took no testimony. This entirely conclusory statement is offered without a shred of support. I claim no expertise whatever with respect to computers or social media, but I find it impossible to believe that Meta (formerly Facebook), one of the largest and certainly one of the most “tech-savvy” businesses in the world, is utterly without reasonable means to conduct word searches or other specific searches of account data that would make possible a much narrower and more particularized seizure than the one sought here.

In Research Warrant Application Dated March 13 PDF by Anonymous PbHV4H on Scribd

 

 

FN1: Dr Ruth was a diminutive older woman who spoke with a thick Israeli accent and became famous in the 1908s for dispensing sexual advice.  The term's usage for the Judge (a lawyer at the time) was one of endearment by his colleagues. 

A review of our social media posts would reveal the following: 

Kim K 💕;  Michelob Hard Seltzer 💓; Shun Lee Sunday night Chinese Food 💖; Kourtney K 💔;

etc. We invite law enforcement to sift through that. 

ANOTHER ORDER

 Not to be outdone by Alabamah Judges, our own Miamah Judge has issued an order with this footnote about the expert witness who testified:

  Mr. Collier is also a Chicago Cubs fan. Tr. 8. Standing alone, that may not qualify him as an expert witness; but it does demonstrate loyalty, the ability to weather suffering, and an unquenchable hope. In the words of columnist George Will, “Cubs fans are 90 percent scar tissue.” See https://www.azquotes.com/quote/1388745. Surely these good qualities must count for something. 

Now who wrote that order with that footnote? No peaking at the order. 

Based on the sheer statistical number, you should guess one of the thirty-something federalist society judges in our courthouse, because they populate the REGJB bench like boll weevils in a cotton field. And being members of the federalist society, they surely spend their time off the bench pondering deep issues like the emerging philosophical arguments over whether substantive due process should even exist. And of course they make frequent use of Ayn Rand's books like Introduction to Objectivist Epistemology, because they know the fundamental philosophical underpinnings of the federalist society are based, in part, on Rand's writings, about which they can speak at length about. Right? 

Is our sarcasm seeping through?  Just like when Bruce Springsteen (who is playing tonight at Hard Rock) would introduce Clarence Clemons at concerts during Tenth Avenue Freeze Out, by shouting "Do I have to speak his name?", we do not have to speak the name of our resident Cubs fan on the bench. 

And should there be ANY doubt, the use of the word "tintinnabulation" in granting the motion to exclude the prosecution's expert witness is surely a historical first in the annals of REGJB orders, especially in current day, when "after carefully reviewing the evidence the defense motion is denied" passes for scholarly dissertations and thoughtful analysis of legal issues in our Boll Weevile infested courthouse. 

Here is the order. 

Bullard Daubert Order PDF by Anonymous PbHV4H on Scribd

 

 "...Well they made that change uptown and the Cub's fan took the bench... From Doral to Miami all the appellate lawyers waved their hands..." 

HIRSCH RULES FOR RUMPOLE

 With all do respect to his learned colleague Judge De La O (a phrase sure to send Mr. Markus and his cohort Judge De La O into a paroxysm),  Judge Milt Hirsch writes an opinion for Rumpole in his battle for the soul  of the legal profession. 

As you may know, Judge De La O weighed in on Twitter, ruling for Mr. Markus. We had no idea the case had been assigned to him. But the battle is not over. As Judge Hirsch has written an opinion as well and we include it here. Judge Hirsch could have been recused. For a period of time he shared space with Mr. Markus. But we trust his judgment and filed no motion.

De La O wrote:  Comes now the Court to rule. You are a great lawyer, Rumpole. You put up a strong fight in a losing battle. O'Marcus is not only right, he made his case succinctly. You were more entertaining, but he wins handily.

Judge Hirsch responds with his own (brilliant) opinion in the matter: 

On “opinion day,” some Supreme Court justices read their opinions aloud from the bench.  

That wasn’t Chief Justice Earl Warren’s practice.  

He just filed his opinions with the clerk, and that was that.

Except on May 17, 1954.  

On May 17, 1954, Chief Justice Warren read aloud to a packed and hushed courtroom

 every word of his opinion in a case called Brown v. Topeka Board of Education.

  nd he read with particular emphasis the four words appearing at the end of that opinion:

“It is so ordered.”

Of course those four words add nothing to the content of the opinion.  They do not alter or 

add to its import or analysis.  In that sense – and only in that sense – they could be dismissed

 as the sort of “legalese” the value of which the two of you are debating.  

But to anyone who has, as the two of you do, a sense of history;

 an ear for rhetoric; and a feeling for that indefinable but invaluable thing called 

“the majesty of the law,”  those four words sounded forth the trumpet that can 

never call retreat.  They were a clap of silent thunder that we still struggle to hear.

Of course you’re right: there are few judges of the stature of Warren, and few cases of the

 stature of Brown.  

Bad judges lard their orders, and bad lawyers lard their motions, with “legalese” in an 

effort to compensate for a lack of scholarship and prose style.  

But that is not a criticism of the language of the law.  

It is a criticism of the work-product of the judges and lawyers.

Rumpole says: It's now 1-1. Who will cast the deciding vote? 

JUDGE HIRSCH RULES ON MAYOR GIMENEZ' FEDERAL DETAINER ORDER .......

THE CAPTAIN REPORTS:

(Rumpole notes: the prior post has a copy of the order, scroll down if you want to see it.)

We interrupt this issue of "Diary of a Mad President" to bring you this BREAKING NEWS:

THE 10TH AMENDMENT IS ALIVE AND WELL - IN MIAMI-DADE COUNTY .....
..... so Order's Circuit Court Judge Milton Hirsch today .....

"No doubt the limitations imposed by the Tenth Amendment, like so many limitations imposed by the Constitution, are a source of frustration to those who dream of wielding power in unprecedented ways or to unprecedented degrees. But America was not made for those who dream of power. America was made for those with the power to dream." (From Judge Milton Hirsch's Order today).

James Lacroix was repeatedly arrested for Driving With License Suspended.  James Lacroix was also a Haitian National living in Miami.  He was here on a "temporary protected status" arriving in the US after the natural disasters that affected his island nation.

After picking up yet another DWLS Felony, at some point, he was ordered deported by ICE.  So, after spending several weeks in jail on his latest DWLS charge, and then pleading guilty to the charge and receiving credit for time served, instead of being released to the outside world, this time, the Miami-Dade Department of Corrections & Rehabilitation (MDCR) held Mr. Lacroix on an Immigration detainer.  Corrections was acting based on the recent Order signed by Miami-Dade County's Mayor Carlos Gimenez which now required them to honor the federal detainers. On February 17th, the County Commission approved Gimenez' Order by a vote of 9-3.

Remember that in January, shortly after his inauguration, President Trump signed an Executive Order promising to cut off federal funding for so called "sanctuary cities".  To avoid the label of being considered a "sanctuary city", Gimenez signed his Order agreeing to hold inmates in local jails for federal immigration agents even if the feds refused to reimburse the county for the expense.

Last Wednesday, Lacroix, after spending a total of 28 hours in jail on the immigration hold, after having already been sentenced to credit for time served, ICE agents came to pick him up and transfer him to their custody.

Enter attorneys Phil Reizenstein and Kristy Kawass.  Handling the case pro bono, they filed a Writ of Habeas Corpus before Judge Milton Hirsch. The Motion was effectively challenging Mayor Gimenez's Order.

Yesterday, Reizenstein argued that the continued detention of Lacroix, even for a minute, violated the 10th Amendment*, which limits the reach of the federal government on states. Reizenstein describes the action of the Trump Administration's threat to pull federal dollars from any city that is a "sanctuary city" protecting criminal illegal immigrants, as "nothing more than the federal government threatening and blackmailing states and Miami-Dade County".

Reizenstein argued that the controlling case on this matter was Printz v. United States, 521 U.S. 898 (1997)where no less than Justice Scalia overruled the federal government's attempts to command state and local law enforcement officers to conduct background checks on prospective handgun purchasers.

This morning, Judge Hirsch, in a 15 page ruling, shot down the Gimenez Order.  Hirsch explains the issues of ICE's detainer requests upon the MDCR this way:

"This practice, however, gives rise to two inequities. First, it obliges the Department to

house, oversee, and control prisoners in whom neither the state nor the county has any ongoing

interest; and it obliges the Department to do so at county expense, because neither ICE nor any

other instrumentality of the federal government makes the county whole for the cost of this

housing, overseeing, and controlling. Second, it results in the continued incarceration in county

jails of persons neither charged with, nor sentenced for violating, any state or county law, and

whose ongoing incarceration by the county is therefore difficult to justify."


Hirsch, citing to Scalia’s opinion in Printz said: "Apparently it was clear to the members of the first Congress that the federal government is without power to compel state authorities to house and maintain federal prisoners – even if the federal government offers to pay a fair price for that housing and maintenance".

Hirsch ruled that:

Lacroix was a county prisoner, but at present the county has neither a reason nor a basis in law to
keep him its prisoner. A federal agency wants Lacroix to be a federal prisoner, but demands that
the county do the imprisoning on the federal government’s behalf. That is a demand that the
federal government is constitutionally prohibited from enforcing, and it is a demand with which
the local government is constitutionally prohibited from complying. "It might well be deemed an
unconstitutional exercise ... to insist that the states are bound to provide means to carry into
effect the duties of the national government, nowhere delegated or intrusted [sic] to them by the
Constitution." Prigg v. Pennsylvania, 41 U.S. 539, 541 (1842) (Story, J.).

Judge Hirsch went further by stating that:

The "people" to whom the Tenth Amendment refers include the native-born as well as the
naturalized citizen; the native English speaker as well as the speaker for whom English is a
second, or third, language; the scion of old Yankee stock as well as the newcomer who took the
oath of citizenship yesterday. Miami is not, and has never been, a sanctuary city. But America
is, and has always been, a sanctuary country. As I have written elsewhere, "America, perhaps
more than any other nation, was made great not by its leaders but by its people: by the refugees
who were called to begin life anew; by the pioneers who were called to build a nation; by ‘the
homeless, tempest-tossed’ who were called by the light that shone from the ‘lamp beside the
golden door’." State v. Robaina, 20 Fla. L. Weekly Supp. 406a (Fla. 11th Cir. Ct. 2013) (quoting
Emma Lazarus, "The New Colossus")

With that, Hirsch GRANTED Lacroix's Petition for his Writ of Habaus Corpus.  The Order will undoubtedly be appealed by the County Attorney's Office.  Kudos to Phil Reizenstein and Kristy Kawass for a job well done.

*10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

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

A WIN FOR THE CONSTITUTION AND THE POWER TO DREAM

Judge Milton Hirsch granted a habeas petition today, striking down the cowardly Miami-Dade policy of letting the federal government bully the county and the dade county jail into holding people in jail, although their case is over, while the feds decide if they want to deport them.

Seems like the feds have a point... "bad hombres" and all that running wild.But there's this little, tiny, insy-winsy thing called the Tenth Amendment. And here is what Judge Hirsch had to say about that:

"No doubt the limitations imposed by the tenth amendment, like so many limitations imposed by the Constitution, are a source of frustration to those who dream of wielding power in unprecedented ways or to unprecedented degrees. But America was not made for those who dream of power. America was made for those with the power to dream."

Here is the entire order for President Bannon Trump to peruse. He could ask the attorney general to take a gander, but he is otherwise occupado for a while on other matters.

Well done Judge Hirsch, Well done indeed.

Lacroix Habeas Order by Anonymous espiON9E on Scribd

From Occupied America...Fight the Power, which Judge Hirsch did so admirably today.

CHICAGO CUBS VS. PITTSBURGH PIRATES .....

THE CAPTAIN REPORTS:

CUBS WIN, CUBS WIN .........................

On October 21, 2015, the Chicago Cubs won the World Series, (over a team from Miami), according to the movie Back To The Future, Part Deux.

If you were a fan of the BTTF trilogy of movies then you remember Marty McFly traveling into the future, to the year 2015, and seeing a hologram that informed him that the Cubs had just won the World Series by sweeping Miami, with Old Terry wishing he had "put some money on the Cubbies."

For those of you not in the know, the last time the Cubs actually won the World Series was 1908. They did appear in the Fall Classic in 1945, but the "Curse of the Billy Goat" ensured that they would not win that World Series or any thereafter. That happened when Billy Goat Tavern owner Billy Simms was asked to leave a World Series game against the Detroit Tigers at the Cubs' home ballpark of Wrigley Field because his pet goat's odor was bothering other fans. He was outraged and declared, "Them Cubs, they ain't gonna win no more". In fact, the Cubs have not won a National League pennant since that incident and they have not won the World Series in 107 years.

In 2003, they did come close to returning to the World Series when the Cubs played our own Florida Marlins in the NLCS. With the Cubs leading 3-2 in the series and 3-0 in the eighth inning of game six, they were only five outs away from returning to the Fall Classic for the first time since 1945. That was until Steve Bartman got in the way of left-fielder Moises Alou, preventing him from catching a foul ball, and what would have been the second out of the inning. The Marlins went on to score eight runs in the inning, winning the game 8-3, and then won game seven, eliminating the Cubs once again from appearing in the World Series. (The Marlins went on to defeat the Yankees in six games to capture the title).

Standing in the way of the Cubbies, tonight, is the team from Pittsburgh. The Pirates, affectionately known as the Bucs, have a much more storied history of winning in October. They have won five WS titles, but they have not been back to the World Series since 1979. They did win two titles in the 70s, first in 1971 and then again in 1979. Their most famous WS victory though came in 1960 when they defeated the perennial powerhouse Yankees in seven games when Bill Mazeroski hit a ninth inning home run, winning the game, 10-9, and winning the Bucs their third WS Championship, and first since 1925.

On Thursday morning, if you are walking through the Gerstein Justice Building, and the Cubbies won the game, don't even think of saying hello to the Justice Building's number one Pirates fan, Phil Reizenstein. On the other hand, if the Bucs do win, then do not, under any circumstances, go anywhere near the courtroom of the number one Cubs fan this side of Chicago, Judge Milton Hirsch.

We invited both of them to add a paragraph describing the love they have for their team. Here is what each had to say:

PHIL REIZENSTEIN

"Being a Pirate fan is something in your blood. My dad was raised in Pittsburgh and I grew up hearing the legend of Mazeroski's home run. (The anniversary of which is next a Tuesday at 336 pm). Then in 1971 I had my own Pirate moment. My team made it to the the world series. My grandfather had tickets and I went to all three home world series games including the first night world series game. This was Roberto Clemente's series where he showed the world that he was among the greats of the game. He hit a home run in game seven and hit safely in all 14 world series games he played it. Then in 1979 we had the year of the city of Champions. The Steelers won their fourth super bowl and Willie Stargell hit a McCuellar hanging curve ball for the winning home run in game seven. The dark years of the 1990's followed when it became impossible for the Bucs to compete financially. Now a resurgence. And with the Pirate's resurgence a middle aged man has found his youth again. Maybe I am being a bit over dramatic. But then, I never fail to cry at the end of Field of Dreams when Kevin Cosner says "wanna have a catch dad?". No matter what happens Wednesday it's been a great season. So as we say in the steel city of Champions "Let's go Bucs!!"

"I am eternally grateful for being a Pirate fan. I'm sure Milt will have a long explanation of how it feels to root for a loser. Unfortunately I predict his misery will continue. Phil."

MILT HIRSCH

"It was 1908, and the Cubs were a dynasty, and Bert Spector was ten years old.
(Give me a minute. I’m staring longingly at what I’ve just written.)

It was 1908, and the Cubs were Tinker to Evers to Chance in the infield, and Mordecai "Three Finger" Brown on the mound. Bert Spector, whom I would come to know half a century later as my great-uncle on my mother’s side, was a kid of ten.

Wrigley Field would not be built for another half-a-dozen years, and the Cubs would not play there for two years after that. The 1908 World Series champions played at the old West Side Ballpark on Paulina Street. There were no professional grounds-crews in those days; armies of eager kids would flock to the ballpark early every morning, each to be handed a large garbage bag and a sharp stick. Any kid who filled his bag with refuse from the playing field and the stands could watch the game from the cheap seats.

Thus it was that my Uncle Bert saw the Chicago Cubs win the 1908 World Series. We haven’t won it since.

Decades passed, and our family grew. At dinners and other gatherings, whenever there was a lull in the conversation, someone – me, my dad, my cousin Marty Katz – would fill the void by asking, "Gee Uncle Bert, tell us about the 1908 World Series." And tell us he would. I recall praying silently, "Please, God, just once more before Uncle Bert dies. Let us win just once more before he dies." At Bert’s funeral, Marty told me he used to pray the same prayer.

There’s an old joke about the Cubs fan who dies and finds himself standing before the Pearly Gates. "Where do you come to us from?" asks St. Peter. "I was in Wrigley Field when I died," says the Cubs fan. St. Peter’s face falls a little. "You may be disappointed here," he explains.

I guess Uncle Bert had a lot of disappointment to deal with. But no more. He’s looking down from his box seat in a ballpark almost as good as Wrigley, and he knows that this is the year.

Tonight’s for you, Uncle Bert. GO CUBS!"
　
Good luck to both the Cubs and the Pirates tonight.

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

JUSTICE OR VENGEANCE ?

There was a time, before legislators reacted to Hollywood movies and began enacting sentencing guidelines and minimum mandatory laws, when Judges could be Judges instead of calculators. 
There was a time when Judges like Ed Cowart, Tom Scott, Tom Carney, Herb Klein, David Tobin, were trusted with deciding a sentence. They presided over a case, or listened to the facts of a plea, and based on their legal experience, sentenced a defendant. 

Then a few sentences got headlines, a few movies began to show criminals being released from prison and running amok in society, and everyone over-reacted and the legislature placed most of the sentencing power in the hands of a 25-30 year old prosecutor a few years removed from law school. Judges, many of who were  practicing law for as long as many of the prosectors appearing before them were alive, were regulated to moderately paid calculators - sorting through the alphabet soup of minimum mandatory sentencing laws (HVO, HO, PERP, WTF, etc) the prosecution refused to waive, totaling points, and imposing sentences without regard to the particular facts of the case. 

Rare is the case where a judge has any real discretion. 

Rarer is the jurist with the guts to exercise that discretion. 

It's easy to sentence a defendant to the maximum prison sentence. It doesn't make headlines in the Herald. Dog bites man. 
It's hard to temper justice with mercy. To ignore the bloodlust of prosecutors after a hard fought trial and sentence a defendant to what he or she deserves (in that Judge's opinion) without the fear or the Herald or the dreaded "victim".  Man bites dog. 

When did "victims", most of whom are not lawyers, take over sentencing? 
When politicians took over criminal law. 
This is not to disparage the victim of a crime. 
But victims are emotionally attached to what happened to them. They mostly cannot see justice, and just want vengeance. And criminal law is supposed to be about justice and not vengeance. 
But walk through any criminal court these days and you frequently hear the refrain "The victim wants the MAX" as the prosecutor's explanation as to why they cannot offer a reasonable plea that everyone but the emotionally affected victim knows is correct.

Nobody (successfully) runs for office on the slogan "fair on crime." 

Enter Judge Milt Hirsch. Faced with sentencing a 76 year old lawyer with prison, he instead issued a sentence that he thought fair or just. 
Judge Hirsch's sentence might be right. 
Or it might be wrong. 

But on this point there can be no doubt- it's the sentence of a JUDGE. Not a coward. Not a prosecution lackey who's afraid of the Herald and kowtows to victims who are understandably and rightfully upset. 
Tough decisions aren't always popular. But this is why we pay Judges those mediocre salaries: to do justice in the face of cries for vengeance. 

Sometimes, as Winston Spencer Churchill observed, you need to fight even though you may not win:

“If you will not fight for right when you can easily win without blood shed; if you will not fight when your victory is sure and not too costly; you may come to the moment when you will have to fight with all the odds against you and only a precarious chance of survival. There may even be a worse case. You may have to fight when there is no hope of victory, because it is better to perish than to live as slaves.”

Better to do justice as a Judge, then perish a slave and lackey to prosecutors and negative media. 

THUS SPAKE ZARATHUSTRA....AND HIRSCH AND REBULL

Ms. Harrell was arrested for DUI and resisting without violence. Things went downhill from there. She won the battle (acquitted of DUI) but lost the war (convicted of resisting without violence).  The conviction was upheld on appeal by an appellate panel of the 11th Judicial Circuit. 

The opinion cites to John Marshall's closing argument in Commonwealth v. Randolph,  cites approvingly to the common law circumstantial evidence rule, and includes an old lawyer's ditty on circumstantial evidence.  All clues which would lead the  "aporetic"* reader to conclude s/he was holding in her hands nothing less than a Judge Milt Hirsch appellate opinion. 

The opinion is well worth a read and indeed a careful study for its elucidation of the common law circumstantial evidence rule (something every trial lawyer should know), a careful recitation of what lawyers need to do and say during the all important motions for judgment of acquittal, and an excellent primer on the difference between direct evidence and circumstantial evidence. 


With commendable lawyerly afflatus, appellate counsel for Ms. Harrell seek to divide and conquer. They bifurcate the crime into its actus reus and its mens rea, then argue that the latter was
not proven otherwise than circumstantially.
But this bifurcation has no place in the application of the common-law circumstantial evidence rule...

Notable in this opinion is the concurrence of Judge Rebull in which he very clearly signals his distaste for the use of the common law circumstantial evidence jury instruction. Rebull is not alone in his antipathy towards the instruction; he cites to a Florida Supreme Court decision calling the instruction "confusing, and incorrect" and "unnecessary." 




A warning: read the penultimate paragraph of the opinion, in which the court opines that rarely if ever, should a court grant a motion for a judgment of acquittal based on application of the common law circumstantial evidence case. The court likens the successful application of the law as to the existence of a quark- we know it exists, but it hasn't yet been seen. This is an ominous conclusion for the defense bar. It is supposedly supported by logic. See FN5, which we believe will become infamous in its erroneous application of circuitous logic, or more precisely:  a dangerous informal fallacy.   Such conclusions (a court should never grant a motion for judgment of acquittal in a purely circumstantial evidence case) have no place in this, or any opinion. 

Lesson from all of this falderal? Thus Spake Zarathustra, A book For None and All:

O man, take care!
What does the deep midnight declare?
"I was asleep—
From a deep dream I woke and swear:—
The world is deep,
Deeper than day had been aware.
Deep is its woe—
Joy—deeper yet than agony:
Woe implores: Go!
But all joy wants eternity—
Wants deep, wants deep eternity

Thus Spake Hirsch and Rebull in Harrell v. State. An opinion for None and All. 

*Borrowed, without permission, from the opinion. The term describes a person who has doubt, is puzzled,  or is otherwise at a loss...

MILT HIRSCH, LESLIE ROTHENBERG, AND THE TAPES

Lesson one of legal blogging in Miami: Put Milt Hirsch in a post and the hits on the blog go through the roof.
 
Last we left Milt Hirsch, Miami's own "Bard of the Bench" he  was safely ensconced in his robes. There was just the nagging issue of his former client Sean Casey. To make a very long story short, Casey was charged with DUI Manslaughter. Milt did a spectacular job and got the blood tests suppressed. The 3rd DCA (in what should have been recognized as a precursor of things to come) reversed the trial judge's order. The case was returned for trial and Mr. Casey fled to Chile where he resided for two years until he was apprehended. Upon return to Miami, Casey, with Hirsch as his counsel, entered a plea and was sentenced to prison.
 
Casey filed a post conviction motion to set aside his plea. His main contention was that Hirsch and his therapist (recommended by Hirsch- Dr. Michael Rappaport) advised him to flee once the 3rd DCA reversed the suppression of evidence. Prior to fleeing, Casey and his mother surreptitiously taped Hirsch and Rappaport. "The Hirsch Tapes" as they came to be known, ended up in the possession of the SAO (motto: "The tapes are none of your ^%@!$!$~! business"). David S Markus (NOT the blogger) represented Casey on the motion. The court, at the request of the SAO, SEALED the tapes. Markus didn't get access to the tapes, and the tapes were not admitted into evidence. The court denied the motion for relief. The 3rd DCA, without benefit of the tapes, affirmed the denial. Casey filed a pro se motion alleging  fraud. The State filed a motion to seal. Enter Bruce Brugmann, a San Francisco owner of the San Francisco Guardian. He filed a motion to intervene and oppose the motion to seal. The court denied the motion. Brugmann appealed: From Judge Rothenberg's dissent:

On September 17, 2009, Brugmann filed the instant petition for review of the trial court’s order sealing the judicial record. On April 21, 2010, this Court issued an order denying the petition without a written opinion, and on May 6, 2010, Brugmann filed a motion for rehearing, rehearing en banc, and for a written

opinion. The motion for rehearing was granted, and on April 27, 2012, the panel issued a written opinion denying Brugmann’s petition for review of the order sealing the judicial records. Brugmann v. State, 37 Fla. L. Weekly D1041 (Fla. 3d
DCA Apr. 27, 2012). Upon issuance of the written opinion, Brugmann filed a subsequent motion for rehearing en banc. After review of the motion, this Court again granted rehearing; withdrew the April 27, 2012, panel opinion; and a majority of the voting members of this Court denied Brugmann’s petition without
prejudice to seek relief by other means.

In English: The 3rd DCA will not issue any reason for denying Brugmann's petition.

Enter Judge Leslie Rothenberg, friend of the poor, the weak, the oppressed, and champion of open government. She filed a very lengthy (anything over ten pages and we start skimming) dissent, strongly arguing for the release of the tapes. Judges Salter and Ivan Fernandez concurred with Judge Rothenberg's dissent.

What we have here folks, is a very divided 3rd DCA that cannot agree on much in this case. And ain't that fun?

From the peroration of the dissent:

Some of the evidence the successor judge failed to consider in evaluating whether to seal the Hirsch tape is: (1) whether the tape demonstrates that Hirsch gave perjured testimony at the evidentiary hearing; and (2) whether the tape, when
considered with all of the other evidence, supports Casey’s testimony that Hirsch encouraged him to flee the court’s jurisdiction, thereby committing a fraud upon the court at the evidentiary hearing…

Additionally, when ruling on Casey’s motion for relief of judgment, the trial court should have reviewed the tapes to determine if Hirsch and/or Rappaport counseled Casey to commit a crime; Hirsch and/or Rappaport gave perjured testimony; and Hirsch, Rappaport, or the State committed a fraud upon the Court

by falsely representing what was said on the tapes.

Rumpole says: WOW. It's not often we get to use "peroration".
Disclosure: We like Milt Hirsch. And we do not believe for one moment he committed a crime or counseled his client to flee. His reputation earned over many decades as a pre-eminent attorney entitles him to that presumption. And yet....

There is something about this we cannot just abide. Why not release the tapes? Especially if there isn't anything to hide. There is a young man in prison who claims the tapes contain evidence that support his legal arguments and would thus establish a very serious fraud upon the court. Why the rush to seal them? Why won't the circuit court judges hearing his motion listen to them? It is all very...distasteful. One could imagine, in other circumstances, Milt Hirsch as counsel for the accused, championing the release of the tapes and excoriating the government for secrecy, much like Judge Rothenberg has done. This case is bizarre. Down is up. Up is down. Milt Hirsch is on the side of tapes being sealed and kept from a defendant and Judge Rothenberg (to her everlasting credit) is championing giving the defendant a fair hearing and access to evidence.

Very strange.

MILT'S 3RD DCA MISERY CONTINUES

UPDATE:  A reader reports on the memorial for Jim Best:

Went to the party for Jim Best last night. I saw; His (now and past)partners, Joe, Chris Lyons, Rene Palamino, and others. Judge Richard Hersch Lasoyna Lacy Tom Risavy Mike Catalano Bob and Dad Louis Lesperance Judge Bill Altfield Judge Patty Marino Ted Mastos and wife Lt. Jeffrey Locke and wife Gina and many othes. We did a toast to Jim. I suggest all of us who knew and liked Jim Best, raise a glass tonight and say a toast to our old buddy. RIP Jim.


"For never was a story of more woe than this of Juliet and her Romeo."

The story you are about to read is true. The names have not been changed, as nobody is innocent. 

This is the city...Miami. Millions of residents. Twenty eight (or so) are Judges assigned to the criminal circuit court. This is the story of one of them: (cue Dragnet theme.. dum da dum dum. Dum da dum dum dum....)

Judge Milt Hirsch does not like fingerprints. He told the prosecutors he doesn't like fingerprints and then told them that in any fingerprint case to ask him to recuse himself. They did. He didn't. This appeal follows. 

"The affidavit further avers that, subsequent to this disclosure, in a separate conversation with another prosecutor, David Gilbert, Judge Hirsch suggested that the State file a motion to disqualify him because of his preconceived opinions on the subject of fingerprint evidence. When Mr. Gilbert suggested to Judge Hirsch that he should recuse himself based on his expressed feelings, Judge Hirsch stated he would prefer that the State file a motion to disqualify him, which he would grant. In addition to these statements, the affidavit states that Judge Hirsch told a third prosecutor, Christine Zahralban, that if the judge had a case in which the issue of the reliability of fingerprint evidence was raised prior to trial, he would recuse himself from hearing that case. Based on these statements made by Judge Hirsch and, in light of the defendant’s challenges to the fingerprint evidence and the defendant’s pending motions, the prosecutor in the instant cases took Judge Hirsch at his word and orally requested that he recuse himself. Judge Hirsch replied that he would not disqualify himself sua sponte, but he was expecting the State to file a motion to disqualify him..."


"However, despite the averments in these affidavits that Judge Hirsch acknowledged having preconceived opinions on the subject of fingerprints, urged two separate prosecutors on different occasions to file motions to disqualify him in cases where the reliability of fingerprint evidence was raised prior to trial, and told these prosecutors that if they filed such a motion he would grant it, Judge Hirsch denied the motion to disqualify filed by Mr. Ko. This was error." 

"Although Judge Hirsch’s disclosure of his writings on the issue of fingerprints most likely do not require his disqualification1, his invitations to file motions to disqualify him in cases where the reliability of fingerprint evidence becomes an issue, and his assurances that he would grant such motions if filed, certainly would cause a reasonable person to question the judge’s ability to fairly and impartially adjudicate the issues surrounding the reliability and admissibility of fingerprint evidence in a judicial proceeding."

An appeal in the form of a writ of prohibition was taken on Judge Hirsch's refusal to recuse himself on a fingerprint case in State v. Borrego.
In a moment....the results of that appeal. 
"Have more than thou showest, speak less than thou knowest, lend less than thou owest".  ( King Lear, Act I, Scene IV).

We therefore hold, as our sister courts and as we have previously held, that where a judge makes a disclosure, invites the parties to file a motion to disqualify him, and suggests that such a motion will be granted, the motion, if filed, must be 

granted...

Because we conclude the judge should have granted the motions to disqualify him, his subsequent rulings were without authority and are hereby vacated."

Milt for this blog is like a wet t-shirt reality TV show on Fox. Ratings go through the roof. We see a minimum 20% jump in unique hits and readers and a corresponding increase in comments. 

See you in court. 

UH, MILT, WHAT WERE YOU THINKING???

THE CAPTAIN REPORTS:

UH, MILT, WHAT WERE YOU THINKING ??? .....

I was listening to the news Wednesday evening. The story was about two men charged with raping a pregnant woman at Johnson & Wales in North Miami.

The news report showed video of the Bond Hearing and the Judge was Milt Hirsch.

I heard Judge Hirsch ask more than one question that sounded way out of bounds.

Hirsch: Do you know who the alleged victim in the case in which you are charged is?

Defendant: No sir

Hirsch: You have no idea?

Defendant: No sir

......

At one point in the questioning, Hirsch asked the defendant WHERE WERE YOU ON DECEMBER 22 (the date of the alleged rape).?

He asked at least one other question that sounded totally inappropriate. (I tried to find the video from the newscast online, but was unable to locate it).

I cannot understand why Judge Hirsch would be posing a question that basically asks: Where were you on the date of a crime that you are alleged to have committed?

The Judge certainly has the authority to make decisions about the bond amount based on danger to the community and risk of flight. If the Judge wants to issue a Stay Away Order, he could have turned to the ASA and asked the victim's name and then entered an Order directing the defendant to stay away from that victim.

But to cross examine the defendant, (and that WAS the tone of the questioning), asking questions that would potentially incriminate the defendant, was totally out of line. Quite frankly, it appeared (both by his facial expressions and his tone of voice) that Hirsch was incredibly upset with what this defendant was being charged with. (The victim is eight months pregnant). Who wouldn't be?! But, Judge Hirsch's job description does not permit what I saw on that video Wednesday evening. He could have done what he needed to do without posing the questions that I heard him ask.

What's your take on this? Some of our readers have already chimed in:


4:25 writes: In response to the questions asked by Judge Hirsch, the Judge refused to issue a stay away order in the rape case because "the defendant doesnt know who the victim is"

8:48 wrote back: 4:25 Shame on you. You interfered with Captain's favorite past-time of pissing on Judge Hirsch. I assume that the Captain Judge would simply have issued the stay away order. Who cares if the defendant doesn't know who to stay away from.

And in response, was this entry:

To 8;48 , Judge Hirsch did not issue the stay away order because the sub told the judge (upon questioning) that he didn't know who he raped! Apparently that is a new standard in issuing stay away orders. You cant issue one to a sub who hasn't the freakin manners to ask his freakin vic their name.

And finally, this:

Didn't the prosecutor know the victim's name? They are the ones who tell the bond judge to issue a stay away order keeping the defendant away from whatever the name of the victim is.

Judge Hirsch has been getting very good reviews as he closes out his first year on the bench. It started a bit rocky when he issued that standing Order where even Rumpole himself had to use his online dictionary to figure out some of the words Hirsch wrote. The Judge also shook the GJB with his bold ruling on the constitutionality of FS 893.13, finding it facially violative of the Due Process Clause of the 14th Amendment to the US Constitution.

Next year is an even year, and that means election season. We look forward to 2012 and qualifying day as we watch with excitement all of the judicial match-ups that are formed for the end of summer election. We also have the "big one" in November, but we'll leave the blogging on that to our 538 guru Horace.

So, for now, we simply wish you the safest of holiday weekends and hope that 2012 is your best year yet. Happy New Year.

CAPTAIN OUT ......

MOTION GRANTED, BUT NOT IN BRIEF

WEDNESDAY AFTERNOON UPDATE: MICHELLE SPENCE JONES ACQUITTED. CONGRATS TO PETER RABEN. WELL DONE.!!


ATT00081

We will be brief:

My oh my, where to begin?

Everyone's favourite Sesquipedalian Judge has issued an order granting a motion to suppress. It is mind boggling. It is a pean to egoism, but not in a bad way. And as they say, "it ain't bragging if you can do it." And boy can he bring it. From the obvious pedestrian references to Shakespeare to "apodictic" (stolen from the recent 3rd DCA opinions) to "the dreaded S word" (his own creation=standing) to his pedantic footnote in which he claims William Pitt The Elder, The First Earl Of Chathman, is "oft quoted" (not in this world) to the second most dreaded "S" Word: " struthious."

Let's dig in.

Our Sesquipedalian Judge starts with a false nod to brevity by engaging in a standing analysis in which he begins by writing: In this spirit – in the spirit of sparing the slaughter of trees to make paper, or the perturbation of electrons to make pixels...and then he spits in the eye of the spirit of brevity by writing seventeen (17) long pages of this claptrap and piffle.

When confronted with technical language used by the officers, (for which he modestly feigns ignorance) he characterizes it as "police argot".

When finding that a defendant has indisputable standing, he pulls out his thesaurus to write:

As to Damian Glover, his case for standing is irrefragable.

Writing about the fourth amendment our Judge searches his inner Brandeis, seeking a flourishing peroration about the amendment for which he strives, at this late date, to put his own stamp on: Undoubtedly faith is a virtue; but where the Fourth Amendment is concerned, due diligence and reasonable inquiry are greater virtues..

And finally, just to make sure the officers know who's in charge and who's smarter, he takes this nifty shot:

we do not demand of the officers the level of scholarship and

sophistication associated with those who possess an LL.M in real property law from the

University of Miami; (or from sesquipedalian Judges) but neither do we permit them to display a struthious and willful blindness. ( notice the subtle use of the royal "we" that we write our blog with?)

For those of you who care, "struthious" means "of relating to an Ostrich and related birds".

There must be an easier, wiser, more judicious way of saying that the police cannot put their heads in the sand.

So there you have it, in all its glory, Volume 1, pages 3-19 (pages 1-2 are comprised of his initial practice order issued January 1, 2011, at 12:01 am) of the collected Wit and Wisdom of Judge Milton Hirsch. Much more to follow as we cannot get enough of this stuff. It's what makes bored bloggers sit up and smile.

For now we leave you and the Judge with this thought from our beloved Bard who we assure you we were quoting when the Judge was knee high to a police officer spouting argot:

Therefore, since brevity is the soul of wit,
And tediousness the limbs and outward flourishes,
I will be brief.
~William Shakespeare, Hamlet

Words to rule and write by, eh?