JUST ANOTHER MONDAY IN PARADISE

Our new Chief Judge poll is up. Vote. 

Careful readers of the blog will note our new link with Channel Two's uVu. They promised a a link to our humble blog. Check out uVu. 

SUPREME COURT

With the illness of Justice Ginsburg, how does that effect the widely anticipated retirements of Justices Stevens and Souter? Stevens has done a superb job, but as the bible says, there is a time for everything, and his time on the court is coming to an end. Justice Souter, who is much younger than Stevens, has never taken to Washington, DC. A nasty mugging while jogging a few years ago in DC did nothing to make his view of the Capital any better. Souter is an odd bird, and he prefers the solitude of his New Hampshire cabin to the solitude of his Supreme Court chambers. But while President Obama was widely believed to have two Supreme Court nominations to make during his first term, he may now have three. While Ginsburg has often talked about working until her mid 80's, (she is 75 now) the post surgery pathology reports will go a long way to knowing the future of her health. 

Any possibility a Supreme Court nominee comes from the Florida area, including the 11th Circuit? Will anyone we know even make a short list?

RECESSION STORIES

The recession has hit everyone hard, the legal profession included.  Large firms have laid off attorneys and staff.  Nobody is hiring. Many of our readers are self employed or work in a small firm. The others work for the PDs or the SAO. 

How has the recession affected you?   If you are a PD or ASA, have you put off your plans to go private? If you're running your own firm, what strategies are you using to survive. 

Who's making it? Who isn't? 

One thing's for certain- that black robe some of you wear has a big red target on the back. That juicy, guaranteed salary and benefits looks mighty appealing to attorneys wondering where their next client is coming from.  

Just a friendly thought from your favourite blogger. 

See You In Court. 

THE PRICE OF TRUTH

for Everton Wagstaffe is remaining in prison to await the results of a DNA test, although he can leave anytime he wants because he has served 17 years and is approved for parole. The title of the post links to the NY Times article. 

“I am willing to sacrifice more to prove my innocence,” Mr. Wagstaffe said. “To do otherwise would be a betrayal of the truth and what is right. My time is ripe. I won’t allow myself to be released with these conditions. It will be proven that I had nothing to do with this terrible crime, and then I will walk out of here.”

Rumpole asks, "what would you do?"

DNA EXONERATION TOO LATE. 

We have often viewed the DNA exoneration of death row inmates with this troubling thought:  what about all the wrongful convictions of those people not sentenced to death?  Death penalty cases draw the most attention, not to mention the most of the precious resources needed to exonerate those who were wrongfully convicted. What about the inmate serving ten, or twenty, or thirty years who was also wrongfully convicted? 

 Most of wrongful conviction  cases arise out of the use of eyewitness identification, which,  for those of you who have read "The Seven Sins Of Memory" know is about as reliable as  CIA intelligence on WMDs in Iraq.  

Exoneration came way too late for Timothy Cole,  who died in prison before he could be exonerated. Here is the link to the NPR article. Listen to the report. It is heart rendering. This young man was in high school with his whole life ahead of him, when a wayward accusation of rape, with no supporting physical evidence, overcame Mr. Cole's  strong alibi in a Texas courtroom in 1985. Mr. Cole was black. He was with friends and family when the rape occurred. The victim was white.  So was the Texas jury, and that was that. 

As Timothy  Cole sat weeping in his jail cell, the real rapist sat in the cell across from him, listening to the heart rendering cries of a young man whose future had just been wiped out. 

Timothy Cole,  who suffered from severe asthma, died in prison. DNA has now exonerated him completely. Listen to the NPR report and how Cole's attorneys could not get one Judge in Lubbock Texas to even re-examine the case after DNA cleared him, and the real rapist confessed. 

Some great justice system we have.  "The envy of the whole world"  our politicians like to brag. Yeah. 

See You Monday. 

3rd DCA ROUNDUP

Update: We just learned something today. Who is the only President to hold a patent? 

Chief Judge runoff- February 12th, high noon. Judge Ivan Fernandez versus Judge Joel Brown. Details of the vote were faxed seperately to Rumpole last evening by judges Miller and Dennis-Espinosa. 

If it's after Wednesday, and we don't have anything else to do then it's time for 

3RD DCA ROUNDUP!!!!

In Martinez v. State, what is notable is what is absent in the opinion. A defendant filed a post conviction relief motion in January 2005. Nothing happened.  In October 2008, the Defendant filed a petition for a writ of mandamus. The prosecution responded that the judge was ordering the transcript and reviewing the case.  Nothing has since happened. Even the 3rd DCA  Judges have a limit to their patience: 

We ordered a supplemental response,
which now informs us that the judge was transferred out of the criminal division on
January 9, 2009. He evidently left the division without ruling on Martinez’s
motion. We must now await the new judge, who took over the division on January
12, 2009. The matter would then be brought to the new judge’s attention.
We believe four years is enough time to review and rule on a post-conviction
motion, and therefore issue the writ of mandamus, ordering the circuit court to rule
on this motion forthwith.

Rumpole says:  OK folks, you can't find out who we are, but lets try and find out who the Judge is. He is a male; he just rotated out in January.  First correct answer gets a prize. 

Also let's play another game. Remember "Name That Tune"? For our robed readers out there, please write in: "I can review and rule on a post conviction motion in....." the answer so far is four plus years. 

Here's another game:  For years and years and years now the FLWs have been littered with this opinion (so we've heard): 

Because the trial court denied relief without attaching records, we must
reverse and remand for attachment of records conclusively showing that the
appellant is not entitled to any relief or an evidentiary hearing.

We're now going to start posting the names of Judges who cannot, even after all this time, follow this rule. Maybe public shaming will d0 the trick. 

First winners:

Judge Eig in Jackson v. State.

Judges Julio Jimenez and Mark King Leban in Dunn v. State. 

Judge Soto in Lucien v. State. 

We know that scut/grunt work like reading transcripts and attaching portions of records are not what you signed up for when you became a Judge. That is beneath you. That's for lawyers to do.  You have more important things to do. Joes is closing soon, and there are all those sales going on at Bal Harbour. But unfortunately the 3rd DCA is not going to back down on this, and we're getting tired of reading that same damn opinion over and over again, and think of all the trees you'll save by reducing the size of the FLWs. Why maybe even Al Gore will give you a shout out. 

Be warned robed readers, we're going to sink our teeth into this like a Judge getting a free order of Jumbos at Joes. 

See You in court. 

NEW CHIEF JUDGE

BREAKING BLOG NEWS: IN A HOTLY CONTESTED ELECTION, WE NOW PREDICT........

DEWEY BEATS TRUMAN......stay tuned. 

The Cardinals are in conclave. No white smoke yet. 

We may not be able to break the news when it happens. There's this horse running at 3 and ...never mind. 

4:30 Update. Is it possible they're still at it?  So many judges still in the courthouse this late (for them) in the day? 

They say Brown is close. So were the Cardinals. Stand by. 

5:20 Update: The golf courses and malls of South Florida are especially empty today for some unknown reason. 

Joel Brown and Ivan Fernandez slugging it out (so to speak. They're both gentlemen and very fine judges.) 

Which one will find Santonio Holmes in the end zone with 35 seconds left????

Rumor has it both judges have promised to "find Rumpole and hang him by his thumbs in the second floor justice building restroom".   The rest of the judges gave a standing ovation. 

ABRAMSON LOSES IN SUPREME COURT

Many of you have followed with bemusement the predicament of West Palm Beach "Circuit Judge" Stuart Abramson, who upon being elected, was promptly suspended by the Florida Bar for 91 days. 

To be a judge and not be able to practice law, or not be a judge, that is the question, that hung Hamlet like over our dear Thane Governor as he pondered "what to do ...what to do?"  now that it is clear he will not be vice president. 

The title of the post links to the Florida Supreme Court's decision today, which, shockingly, relies more upon "common sense" than the letter of the law. That is because Article V, section 8 of the Florida Constitution  states in part that a Judge must be "a member of the Bar of Florida". It does not say anything about being "a member in good standing."   More unfortunate  is Florida Bar Rule 3-5.1(e) which states that a suspended lawyer is still a member of the Bar. 

Therefore, ipso facto and "holy Crist,Batman" it appears that suspended lawyers can be judges.  And as we've often said, we've met more judges who couldn't practice law if their mortgages depended on it, then lawyers who should be judges. 

But here comes the Florida Supremes to the rescue, injecting a good old dose of common sense,  and holding that when Article V section 8 says "a member of the Bar" what the legislature really meant to say, and ought to have said, was "a member of the bar who can practice law." 

So much for the Republican-conservative judicial philosophy of  strict interpretation and plain meaning of the statute.  That only applies when taking away food vouchers from hungry children, and keeping guns readily accessible for all.  When their ox is gored, conservative judges will run to the "this is the right thing to do no matter what the law says" just as much as a liberal judge. As we've seen, it just depends on whose ox is gored. 

And with that lesson in constitutional interpretation behind us, we are left with this question: does Abramson get paid? Because if he does, can you imagine, getting a judge's salary for doing nothing? 

Umm...wait a second. After further reflection, that somehow does not seem to be as hard to envision as we first thought. 

See you in court. 

BRRRR

Good morning. It's 46 degrees. And a cold front is moving through that may make it colder. 

Welcome to Miami. 

More on jury questions: 

The comments section to yesterday's post  contained pro and con thoughts on jurors asking questions. But we still have this question:  Is it now mandatory to allow jurors to ask questions?   If it is mandatory, and the court does not make provisions for jurors asking questions, then is a defendant entitled to appeal if s/he loses at trial? 

Also, some lawyers wondered whether some questions would require a mandatory mistrial? As we understand it, the rule requires the judge to review the questions before asking those the judge deems appropriate. If a question is not asked, how can what a juror is thinking cause a mistrial? 

A MISTAKE. 

Former President George W Bush (has nice ring to it, doesn't it?) Was famous for not being able to recall one mistake he made four years into his presidency. 

How times have changed. President Obama, not a month into his presidency, s quoted here in the WSJ as admitting "I screwed up" in his handling of the Tom Daschle matter. 

FLORIDA'S IMPENDING INSURANCE CRISIS:

As cold as it is, the hurricane season is approaching and we have a full blown insurance crisis here in Florida. Republicans- those free market fun guys, have inexplicably imposed strict price controls on insurance companies. Now those companies, who cannot raise prices without permission from the State (and the Republicans did this?  What happened to free market capitalism? We thought price controls was something those Socialist-French loving Democrats did. ) are leaving Florida. That leaves the state created insurance company-Citizens- (another Republican creation) as the largest insurer in the State. And that leaves all of us on the hook for the next big hurricane.  

The WSJ sounds the alarm here. 

State created corporations. Price controls. Sounds like the Nixon administration. Wait a second, wasn't he a Republican too? What's going on here? 

See you in court, with lots of questions about questions.

SHOULD JURORS ASK QUESTIONS?

BREAKING NEWS: DASCHLE WITHDRAWS AS NOMINEE FOR HHS. 

Here's the Herald article summarizing the experiment some south florida judges have been conducting with allowing jurors to submit questions after a witness testifies. The juror writes the question down and both attorneys and the judge review it. If it meets with approval, the Judge asks the witness the question. Judge David Miller, just back from Civil, where he allowed jurors to ask questions confirms in the article that he will continue the practice in Criminal.

?????

Rumpole says: why would any trial lawyer not want to know what is in the mind of jurors? 

POLITICS.

Politics is fascinating. President Obama is set to nominate Senator Judd Gregg of New Hampshire as the Secretary of Commerce.  Gregg is a Republican and the Governor of New Hampshire, who would appoint his replacement is a Democrat.  The loss of one Republican and the addition of one Democrat in the Senate would give the Democrats a filibuster proof majority, and make Gregg the biggest turncoat Republican since...well, probably the biggest turncoat Republican ever. 

The WSJ reports here that Gregg has accepted the nomination upon securing the agreement of New Hampshire's Governor to replace him with a Republican, keeping the numbers in the Senate stable.

Politics...gotta love it. 

TAXES

Another Obama appointee is in tax trouble and this one withdraws from consideration, the NY Times reports here. 

Just how long can this go on?

Or looked at another way, do even the best and brightest of americans have a little something in their closet? And should that keep them from serving? 

UPDATE: Former Senator Tom Daschle was perhaps uniquely qualified lead the discussion on national health policy. Make no mistake about this- his nomination was derailed by senators who are supported by powerful groups who have a vested interest in keeping health care reform at bay.  We all suffer by what has happened here. 

FORGED IN STEEL

 Judge Rob Pineiro said...

Dear Friends of Judge Manny Crespo:

On my return to Criminal I managed, with the kind help of the AOC, to move into Chambers 625 and Courtroom 6-1—Judge Manny Crespo’s Chambers and Courtroom. I have an 11” by 8” picture of Judge Manny which I have placed in all my assigned courtrooms. However, I would like to give it a more permanent residence by hanging it in the “Crespo Courtroom”. 

Aracely, Manny's wife, and Manny Jr. have agreed to help me with the task and we’ll be hanging it up on Tuesday, February 3 at 8:15 AM. Coffee, cafecitos, pastelitos and pastries will be provided. 

You are invited.

Roberto M. Pineiro

Now on to the Super Bowl. 

These are the moments in which a quarterback's character becomes forged, dare we say it, in steel. Down by 3.  Two minutes and thirty five seconds left in the game. First down yields a holding penalty. Second and twenty and about 90 yards for the win, 65 yards for a chance at at a tie.  Montana did it. Eli Manning did it.  Steve McNair fell a yard short. And now add Ben Roethlisberger to the storied names of Super Bowl winning quarterbacks who have driven the length of the field with two minutes left to win the game. 

It doesn't get any better than what we saw yesterday. 

The Cardinals gave the Steelers everything and more, and with the heart of a champion the Steelers took the best shots the Cardinals had to give, and answered. Both teams should be proud. It was a great game. 

SUPER BOWL SUNDAY

And out internet is down. Here's an abbreviated look at the match-up everyone is talking about:

THE STEELER DEFENSE VS. THE CARDINALS OFFENSE.

The Steelers run a defense like nothing the league has ever seen. When you see 365 pound Casey Hamton, the nose tackle,  out in pass coverage, you've seen it all. 

The Cardinals will respond to the relentless Pittsburgh pressure by spreading out the field, and throwing short routes.  They hope with man on man coverage in the flat, someone can break a tackle.  Here's the problem- The Steeler defense practices against that offense every day. The Cardinal coach used to run the Steeler offense. And although there have been some changes, the Steeler offense and the Cardinal offense are very similar in the schemes they use. 

I think the Steeler defense mixes things up a bit. 2 down linemen, Lamarr Woodley rushing from one side, James Harrison, the defensive player of the year,  from the other side, and the secondary in nickel coverage, forcing Warner to throw into double coverage. Rather than sending 5,6,or even 7 guys, I think they start out the game sending 4, and see what kind of pressure they can bring. 

Steeler QB Ben Roethlisberger has played a great post season. If he brings his A game, the Steelers are hard to beat. Remember, in the playoffs,  the Steelers shut down the San Diego offense with QB Phillip Rivers who was hot as a pistol at the end of the year, and the Ravens offense which led the league in scoring since the mid way point of the season. This Steeler defense is up to the task today. 

So what's the play? The smart bet is the Cardinals +7. While I don't think they will win, I can easily envision a back door cover- the Steelers up by ten with 2 minutes to play and the Cardinals score a meaning less touchdown. 

However, I'm an AFC guy (except when the Patriots are playing).  I gave you the Giants to win it outright last year, and I was very confident about that call. Today I am less confident, but since this is for fun, we're doing this:

50 on Tails. (Mortal lock)

500 on Steelers -7.

See You tomorrow. 

SUPER BOWL BREAK DOWN ONE.

Good morning. It is 47 degrees this morning at 6:32 with a windchill of 41 degrees. The high will be 65 today and this cool weather should last through Wednesday. Perhaps our last cold front of the season? Enjoy it. 

Cardinal Defense versus Steeler Offense:

The Arizona Cardinals Defense has been superb in the playoffs. While still giving up 4.1 yards per rush (which could be a problem as discussed below) the defense has  12 turnovers in the playoffs out of which they scored three touchdowns and three field goals. 

But for the Cardinals to have a chance, their defense needs turnovers. 

The Cardinals defense is a unit subject to breakdowns, giving up 56, 48, 37, and 35 points during different games this past year. Meanwhile, the Steeler defense finished the year number one in the league, giving up 13.9 points per game and giving up over 21 points only four times all year. Only Tennessee managed to score more than 30 points (31) on this Steeler defense. 

The Steelers clearly have the superior defense. Indeed they had the best defense in the league this year by far. However we see this Super Bowl has having two intangibles that could allow the Cardinals to upset the Steelers- the first is which defense for the Cardinals shows up? The one that produced 12 turnovers in 3 playoff games? Or the one which regularly got lit up during the regular season.  

The second intangible is the Steelers suspect punting game, and we'll get to that next time. 

Super bowl fact: ten teams have returned interceptions for touchdowns in the Super Bowl. Those teams are 10-0. Lesson learned: In the Super Bowl, it's much harder to rebound from a costly mistake on offense. 

If the Cardinals defense can neutralize the inconsistent Steeler offense, then we have a game. If the Cardinal defense can get a turnover or two, we may have an upset. Look for the Steelers to try and establish their troubled running game. With a healthy WIllie Parker at the end of the season, the Steelers were able to run against the Browns in the last game of the season, and the Chargers in the divisional playoffs. The Ravens however, were able to shut the Steeler running game down.  The Steeler running game looks like a favorable matchup against a Cardinals defense that is weak against the run. 

Running the ball has two advantages for the Steelers on Sunday: one-  time of possession keeps the ball out of the explosive Cardinals offense; two-running the ball reduces the likelihood of the type of turnover that the Cardinals have thrived on during the playoffs. 

If the Steelers have to throw, they like to do it out of a spread set. The more pressure a defense tends to bring, the more the Steelers spread out their offense, exploiting the larger passing lanes the defense gives up when they blitz.  The Cardinals will closely watch Hines Ward early to see how healthy he is. They will mostly double team Santonio Holmes, the Steelers  WR breakaway threat. And that leaves Steeler wideout Nate Washington as the guy mostly like to break open the game that nobody is talking about. The Steelers like to run Washington deep several times a game and take a shot. That has worked out for them this year, and the Cardinals have a choice to make: shut down the Steeler running game and risk getting beat on the deep ball, or double both wideouts and try to contain Parker. 

The advantage here goes to the Steelers. The Cardinals have been too inconsistent to pick their defense tomorrow. The Steeler QB has played fully up to his potential in the playoffs, avoiding turnovers and throwing the ball with a lot of zip.  The Cardinals need their defense to show up to make a game of it. The Steelers just need to exploit whatever the Cardinals give them, and that's the better position to be in.

Tomorrow: Steeler defense versus the Cardinals offense. 

One betting tip:  As we have already told you, the coin flip will be tails. But what you don't know is that the Cardinals are just about guaranteed to get the ball first. If the Cardinals win the tip, they take the ball. If the Steelers win the tip, they defer to the second half, choosing to put their defense on the field first. If you want to bet the prop who scores first, the Cardinals look like the team to take; if you want to bet the prop which team gets the first turnover or sack, the Steelers are the team to take. 

THE CLUB

VOTE IN OUR MUSIC POLL. Turn it off or crank it up? You decide. 

Update- 89% say "can it". People people...there's U2. There's The Beach Boys. And if you haven"t listened to Pink's "So What" you're missing a funny tune. 

Spin the "wheel of prison" with a Broward Judge....below.  

And don't forget to check out the hottest new recipe sweeping the nation- THE BACON EXPLOSION. Below.

Details for the funeral of former Dade PD Michael Glickstein:

The funeral will be held graveside at Beth David Memorial Gardens located at 3201 NW 72nd Avenue, Hollywood, Florida; (just north of Sheridan on 72nd which is between the Turnpike and University Drive) at 1:30 PM on Friday, January 30, 2009.

One of the most elite legal clubs to be an alumni of?  Yes, those who practice in Hialeah Branch court are an elite group, as are those who gather for coffee in Au Bon Pain at 7:30 AM. However, when you surpass those elite groups, you ascend to the stratosphere of legal intelligentsia: former AUSAS and United States Attorneys for the Southern District of New York. 

Rudy Giuliani. Springs to mind. But lets get real serious. There was Henry Stimson,  secretary of War during WWII;  former Supreme Court Justices Felix Frankfurter and John Harlan and our personal favourite- Elihu Root who won the Nobel Peace Prize in 1912 and was appointed US Attorney by Chester A Arthur. 

The title of the post links to the NY Times article on the Office and who President Obama will appoint to run it. 

THE MORE THINGS CHANGE

Broward SAO asked for eight years on a plea to the court. North of the Border Judge Dale Cohen gave the defendant.....lets play a game:

  THE WHEEL OF PRISON!!!!

8......10.......15.......20.......25.......30. (round and round it goes and where it stops only Judge Cohen knows.)

CLICK HERE TO SEE THE ANSWER courtesy of our friends at the Broward Blog. 

Illinois has a new Governor- Pat Quinn. The Illinois legislature convicted Governor Blagojevich of the articles of impeachment and voted unanimously to remove him from office on Thursday. 

Check out Blago's last day in office.   

We start breaking the Super Bowl down tomorrow with the Arizona Cardinals surprising defense. 

BACON KABOOM!

Planning a Super Bowl Party? Don't forget the hottest recipe sweeping the nation:

THE BACON EXPLOSION

5000 calories and 500 grams of fat. And the web has gone so crazy for it, the NY Times has "weighed" in. 

We'll stick with broccoli and tempeh rolled with some brown rice in a sushi roll.

GLASS MORTGAGES. 

This week we all read  that the Wall Street Bonuses were out, and 18 billion later, people are a bit upset. That includes Senate Banking Chairman Chris Dodd. 

One problem- people who got glass mortgages from Countrywide shouldn't throw stones, as the Wall Street Journal points out here, in a thorough spanking of the Senator.

3rd DCA ROUNDUP

This from the comments section:

It is with a heavy heart I must report the passing of another colleague. Michael Glickstien passed away this past evening. Many will remember him as an APD here in Dade. He was an engineer, cook, and an avid poker player. Lately he was practicing at the Office of the Public Defender in Broward. He was a good person, he had a big heart, and he was my friend. Funeral services will be held graveside tomorrow at 1:30PM at:
Beth David Memorial Gardens
3201 NW 72nd Ave
Hollywood, FL 33024
(954) 963-2400‎

COUNTY COURT JUDGES BATTLE FOR PARKING SPOTS.....BELOW. 

Continuing our new year's resolution (Rumpole's motto: Keeping resolutions for at least a month) we return to the 3rd DCA website to see what's new in criminal law.

Smith v. State:  Everything you wanted to know about the standards for objecting to a preemptory challenge, but were afraid to ask. Judge Rothenberg answers those questions and more. But we  like the opinion for the trial judge's  comment about the state of appellate opinions on preemptory challenges:

COURT:  I suppose there is - - anybody qualifies under our present 

great, deeply thought out appellate decisions. 

 

And just who was this trial judge that didn't gave a damn what he said about the 3rd DCA? We won't make you read the opinion. Anyone? Bueller? Anyone? 

It was TOM CARNEY!!!  They don't make judges like him anymore. We miss him and hope he is enjoying his golfing retirement in North Carolina. 

Note to the 3rd DCA Webmaster (again) : you are still putting PCA opinions in the opinions section and not the PCA section. Come on! How hard is it to run the 3rd DCA's website?  Get with the program will ya? 

Well, that's our second edition of 3rd DCA roundup. Stay tuned for more important stuff, like Rumpole's super bowl locks. We've already posted that "Tails" on the coin flip is a done deal. We called it last year, and as you will see, we've done it again. 

PARKING PROBLEMS.... of a different sort. Our robed readers apparently have their own parking problems as Judge Anthony Arzola found out this week as his REGJB parking spot was appropriated by Judge Pooler who,  carrying the mantle of seniority,  arrived for another tour of duty in the Justice Building.  Judge Pooler was apparently assigned Judge Arzola's parking spot and was not pleased when she arrived to find a car in her spot. Learning it was Judge Arzola's vehicle,  she burst into his courtroom this week, bright blue robes flowing, and casually mentioned that perhaps letting the air out of his tires AND keying his car was a bit much. Judge Arzola, who went through his own much discussed "parking wars" with Judge Joe Fernandez last year (it was not unusual for the prankster judges to place items on each others cars, or have building maintenance put objects blocking the other judge's car in) now has a Judge of a different coloured robe to deal with. 

No shrinking violet she, Judge Pooler has arrived back in the REGJB, and she wants everybody to know it. 

More county court stuff- Judge Norma Lindsey to Civil, Judge Fred Seraphin to Judge Lindsey's division, Judge Pooler to Judge Seraphin's division. And so it goes....

I'M GONNA REPORT YOU TO THE BOARD OF BAR OVERSEEERS

Monday it was sentencing ....today it's discovery Federal style.   Plus, State PD takes the oath. See below. 

"I'm gonna report you to the Board of Bar Overseers...  "

That was a line from one of our favourite movies: The Verdict, staring Paul Newman. The Judge played by actor Miles O'Shea yells that line at Newman after their first go around in court during the trial. 

United States District Judge Mark Wolf has used that line, at least twice now, against Federal Prosecutors in Boston for failing to disclose favourable evidence in a  criminal trial to the defense. The Title of the post links to the Boston dot com article. Thanks to the Broward Blog for first posting this article. 

Rumpole rants: Time and time again US Attorneys around the nation are being caught withholding exculpatory evidence. Isn't it about time federal prosecutors be required to conduct "open file discovery" like most of their state counterparts? 

And when is someone going to look at the Jencks Act and say "well, that's the stupidest thing I've ever heard." (For those of you state court practitioners, "Jencks" material is stuff like police reports, grand jury testimony, witness statements etc.) 

 In Federal court the defense is entitled to all of that good stuff....AFTER THE WITNESS FINISHES DIRECT TESTIMONY.  Yes, we have literally seen a prosecutor say "no further questions" to the witness and then wheel over a box of stuff and say "Jencks" while the judge says to the defense:  "counsel....cross examination?" 

Now that being said, most Judges will gently or otherwise require the prosecution to disclose Jencks material a few days before trial begins. But that is a courtesy and not a right and as a defense attorney you are left essentially begging for a handout. Not a pleasent position to be in. 

Anybody want to defend the Feds?

OUR NEW STATE PD IS SWORN IN TODAY.  If you haven't gotten your invitation yet, stop checking the mailbox. Yes, a gaggle of Judges and important lawyers will convene today at Miami's Freedom Tower (talk about irony) while a Judge administers the oath. Our new PD will then solemnly swear "I Bennett Brummer do solemnly swear..." 

Ok. Carlos Martinez is taking the oath. Good for him.  But Mr. Brummer,  in these times of fiscal crisis,  remains ensconced on  the payroll as a "consultant" ready to do what he has always done: tell David Weed to run the office and not cause any trouble. 

The more things change....blah blah blah. 

Twitter with Rumpole. It's better than working. 

See you in Court, not (like Paul Newman did) asking questions we don't know the answer to. But he still won anyway. 

IGNORING THE LESSONS OF HISTORY

SAD UPDATE: Rabbitt At Rest. Author John Updike passed away today at 76. NY Times Obit here. 

UPDATE. (And at 7:20 am, perhaps the earliest update in our history.) This you gotta read. The Broward blog recounts the long sad tale of a defendant who stood up to the SAO. To make a long story short, after losing a PVH, winning a jury trial on the same charges, and doing 48 months in prison, the SAO waits until the defendant is released from prison before filing a one count misdemeanor battery charge related to the defendant being tased in court during his PVH sentencing. They just don't get the concept of justice in Broward, do they. The blog article is here. 

BTW- how they get away with tasering a defendant whose arms and legs are in chains is beyond me. 

From the discussion on sentencing yesterday, one of our dear readers saw fit to do a bit of research and post this gem: 

From Wilson v. State, 845 So. 2d 142 (Fla. 2003) "[t]he law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional. 

The case goes on to discuss that it is permissible to be lenient in exchange for a guilty plea, but it is not constitutional to impose a harsher penalty because the accused elected to proceed to trial.  Rumpole thanks the individual who took the time to do the research. 

Today we have the topic of "when government works" on our blogging mind. 

From the Secretary of Transportation's Report to Congress: "Over the past year, the domestic auto industry has experienced sharply reduced sales and profitability, largely indefinite layoffs, and increased market penetration by imports...The shift in consumer preferences towards smaller, more fuel efficient passenger cars and light trucks...appears to be permanent, and the industry will spend massive amounts of money to retool to produce the motor vehicles the public now wants...If this is not accomplished, the long term outlook for the industry is bleak."

That's what we like to see. Government in action. Private industry and government working hand in hand to improve efficiency, which in the long run helps industry remain profitable and that in turns keeps unemployment low.  Isn't this just the way things are supposed to work? Bravo to the Department of Transportation for a job well done!!!!

The date of that report?  1980.  Ouch. 

Say what you want about the auto industry. Just don't let them say they weren't warned. Just don't let them say events of the last year caught them by surprise.  The government told them. They didn't listen.  Sort of like most of our clients. And look where they end up. 

See you in court, grumpy, grouchy, and just overall not in the mood to be f'd with. 

ps. A blast of "cold arctic air" is headed for south florida and will arrive Friday night. Lows in the 40's, highs in the 60's. Bundle up for the weekend. And don't say you weren't warned. 

FIRST SUNDAY

This is the  first Sunday without football since those hot, steamy mornings in September (August if you count pre-season). Some readers consistently send emails throughout the season trying to remind us that this is supposedly a legal blog, and they don't like reading about sports. 

With that in mind we turn our attention to....NBA BASKETBALL!!!!!. HA HA. Just kidding. 

Lets look at a subject most of us try to avoid: SENTENCING. 

With a new batch of judges in the REGJB, attorneys will have to again create a new calculus for each judge when advising a client about how to proceed.   

"Does this judge have a particular known dislike of a particular crime?" an attorney must ask themselves. 

More importantly,  how does the judge handle sentencing? 

Some judges avowedly treat a trial as a gamble. "Win you go home, lose you get slammed." These judges are open and notorious about this "policy" and when the time comes for sentencing they don't really want to hear any arguments for leniency. They essentially let you know in no uncertain terms that you were aware of the rules of the game, you played the game and you lost. 

This attitude is of course abhorrent to the principles of justice and antithetical to just about every principle of being a good judge, including judicial ethics.  However, since many judges adhere to this philosophy, we invite them to put their money where their mouth is and defend it here on the pages of this blog. Anything you write will be published in its entirety.

UPDATE: FIRST RESPONSE BELOW.

We've all been in chambers, "off the record" when the judge has made the implicit or explicit threat about the consequences of an adverse jury verdict. We've all heard about the judges who want to assume the mantle of "maximum" worn so proudly by Judge Ellen Morphonios for so many years in the REGJB. And although we disagreed then and now with Judge Morphonios's philosophy about sentencing, she was one judge who would not shy from the discussion.  Hypocritical she was not.  She also uniformly gave your client about the fairest trial in the building. 

So how about it all you "wannabe Morphonios" robed readers? Who wants to defend the Las Vegas style of trials?  As Rocky said in the beginning of the movie when he was collecting money, "You wanna dance...you gotta  pay the band. You borrow money....you gotta pay the man."

Have at it. 

ps. This is not some liberal plea for more lenient sentencing. Some people do bad things and need to be punished. Society needs to be protected. This is about judges who abandon their responsibilities at sentencing and become human calculators, totaling the highest possible sentence and then imposing it. 

FIRST JUDICIAL RESPONSE?  from the comments section,  copied here in its entirety: 

As a judge, I believe that no one should be sentenced to a large number of years unless they committed a crime that hurt other people, commtitted a violent crime or are repeat offenders of the worst kind. Of course, sentencing requires a consideration and balancing of the four reasons for punishment, i.e., rehabilitation, deterrence, retribution and incapacitation. Sentencing also requires consideration of all the statutory factors.
If a defendant is offered probation before trial and you, as the judge, believe that probation would be a fair sentence, you should sentence the defendant to probation after the trial. I have done that many times. When a judge sentences a repeat offender (a real one, not one who is just technically a repeat offender), that's a different story. The judge gets to see that rehabilitation has not worked so far and no one has been deterred with light sentences. Inadvertently, that judge arrives at a conclusion that a heavy sentence is required to punish the defendant and, more importantly, to incapacitate the defendant. This is especially true of defendants who have already been to prison for a similar crime and continue to victimize other people.
I believe that sentencing is the most difficult thing we do. It is the most troubling aspect of being a judge. Many times I have had a good lawyer and a family convince me to give a lower sentence because they have been honest and realistic. I highly respect all those lawyers who know how to handle moments like that.
I hope we can all use this forum as a respectful sounding-board to discuss matters like this one today. As judges, we do not get much feedback from the lawyers.

Rumpole briefly notes, in response to the last line, it is hard as an attorney to engage a Judge in a conversation about sentencing while respecting the rules of ethics. We of course cannot talk about pending cases we have, and it seems awkward to bring up a past sentence because, at least I feel this way, the Judge has a right to tell me to mind my own business. 

WE LIVE IN MIAMI BECAUSE.....

Today it's 35 degrees in NYC. 

12 in Detroit. 

-16 in Chi Town (Chicago). 

13  in Denver. 

-5 in KC (barbeque and soup?)

-4 in St. Louis. 

-25!!!! In Bismark.

BOOKED!!

Shelly Jean Koostz has been arrested and booked for.....failing to return a library book.  ("Booked"  links to the arrest report). The Book? "The Freedom Writers Diary". What irony. 

In a scene reminiscent from Seinfeld,  (click here)  in which Jerry and George are harassed by library investigator "Bookman" for not returning Tropic Of Cancer, Ms. Koostz was harassed and finally arrested and booked for not returning the book valued at $13.95. 

The Defense?  What would you plead? 

3RD DCA ROUNDUP

In our continuing  quest to remain faithful to resolutions bravely made on the ski slopes of California during the heady days of our December vacation, we reluctantly have begun keeping up with the 3rd DCA. As those of you who regularly read appellate opinions know,  "Wednesday is fun day at the 3rd DCA" or the day they release their new opinions. 

Be careful what you ask for: In Jackson v. State this pro se (latin for "ungrateful") defendant, convicted at trial,  was, in the words of senior Judge Schwartz "  so difficult that his 

recalcitrance, antagonism and even personal attacks upon each of a lengthy series  of court-appointed attorneys, all of whom were required to withdraw, rendered it  obvious that he simply would not permit himself to be represented by anyone and  amounted to a binding forfeiture or waiver of that right.

Everyone will be glad to know that in retirement, Judge Schwartz's well thumbed thesaurus is still on his desk. 

Speaking of Thesauruses, in Jenkins v. State,  the 3rd confirmed what we all learned in high school- the prosecution must prove EACH element of the crime. Close enough is not good enough in criminal law.  And Judge Shephard was nice enough to let us know that  " it is apodictic that the State ultimately must prove each element of the  It alleged crime to the satisfaction of the jury and beyond a reasonable doubt."   

In this prosecution sale of cocaine, to the shock and surprise of the prosecution and the trial judge, the court's denial of the motion for Judgement of acquittal was reversed because of this small legal technicality: the prosecution did not and could not prove that the substance the detective saw the defendant sell was cocaine.  Extra points to Judge Shephard for "apodictic". 

Memo to the 3rd DCA webmaster:  half the criminal cases reported under opinions are "PCAs" and since you have a "PCA" section, isn't is apodictic that they belong there?   

So what have we learned today?  1) If you're going to hack someone up with a machete, try and be a bit nicer to your court appointed counsel.  ( Jackson v. State)2) If you're going to prosecute someone for selling a controlled substance, you need to prove it is in fact a controlled substance. (Jenkins v. State)

3) Apodictic is a fun word with many opportunities for use in our daily lives.  

See You In Court, reading the FLWs. 

NY State Governor David Patterson has chosen NY Congresswoman Kirsten Gillbrand to replace Clinton as the next senator from New York. Query: Does County Court Judge Norma Lindesy have a twin sister?