A GOLDEN OPENING

We all know what the golden rule is during trial: a party cannot ask the jury to place themselves in the situation of the defendant or victim- and then ask the jury how they would feel if so situated. (Lost in all the hoopla over self defense/stand your ground is the fact that not only is the golden rule not applicable to the defense, the defense must ask the jury to place themselves in the defendant's shoes, as the jury instructions require the jury to make such a finding as to the defendant's actions.)


We all know that Mr. Black recently lost a very difficult case in state court in West Palm Beach despite presenting an excellent defense. Mr. Black blogged about his opening statement here, and we reprint a portion of his post below.  It is without a doubt a powerful, moving opening that one would expect from a master. However, the court apparently sustained objections about the opening statement. 


Our simple question is this: isn't much of the power of the opening created through a "golden rule" violation? Should Mr. Black have been surprised that the prosecution would not sit by quietly while he masterfully placed the jury in the car in the driver's seat with his client? 


You decide: 

Here is the “first minute” of my opening argument:

“If you were standing on the side of 120th avenue at 12:45 am, you would have seen John’s car as it traveled down the street. As it gets close to the stop sign you can sense there is something wrong with the car.

If you looked into the car you see John trying to control a huge car with an enormously powerful engine that won’t react to orders of its computer. Unknown to John, the throttle control system is not working right. The throttles to this huge engine, 12 cylinders 560 horsepower, won’t close. It won’t stop the fuel coursing into the monster of an engine.

You see John trying to figure out what is happening and he panics trying to stop the car, but without success as it suddenly accelerates through the stop sign and into the intersection smashing into Scott Wilson’s Hyundai.

You see and feel the tremendous force of the collision. Smell the engines and the gas and the smoke. You hear the crushing of metal and the screeching of tires as both cars transition uncontrollably through the intersection.  They are helpless passengers along for the ride, victims both of the immutable realities of physics:  speed, force and distance.

You see John’s head slammed against the driver’s side window hard enough to shatter it. He falls unconscious.

The automobile in which Scott Wilson was driving, now separated from John Goodman’s car, is over the bank, and upside down in a canal; dark murky water, thick with vegetation, and the car all but invisible to human eye.

When John wakes he doesn’t know where he is. He can’t grasp what just happened. He can’t wrap his head around it. You can see him getting out of the car looking around trying to make sense of what happened. He looks but sees nothing. It is almost pitch black. What did he hit? He can’t see another vehicle.

He starts walking towards his house to find help but he is so disoriented and lost he goes in the wrong direction.

He has suffered a concussion, a broken right wrist, and a fractured sternum. His already damaged spine is far worse from the crash. You can see him try to walk. The pain in his legs causing him to wobble back and forth.

As he walks the full force of the pain hits him. For the next hour his only source of pain relief comes from a bottle of alcohol. It deadens the pain.

You will hear from eye witnesses, experts and exhibits:

John Goodman was not drunk or intoxicated at the time of the collision. He simply had not consumed enough alcohol prior to the accident to put him anywhere close.

His car was defective causing sudden acceleration.

He suffered a grade 3 concussion causing confusion and disorientation.

He couldn’t see anyone to render aid to.

He left his passport and driver’s license in the car and was not attempting to flee.

Under the circumstances it was reasonable to look for help rather than stand on a dark deserted street.

This was a tragedy. A young man died. But this was an accident not a crime.

It is this tragic automobile accident that brings us together in this courtroom.

Now let me take you back 7 hours before the accident:”

I thought a good way to involve the jury in the opening was to let them see, feel and hear the accident for themselves. At least that was my idea going in. Unfortunately the judge sustained objections to that and I had to edit on the fly. The judge was very restrictive in his rulings and it made it much more difficult to be an effective advocate. I found myself self-limiting what I said during the trial in order to circumvent objections and avoid annoying sidebar conferences which interrupted the flow of the arguments. Judges seem to prefer a streamlined case without any real advocacy by the lawyers...

MARBURY REDUX

Our own El Capitan broke the news that longtime ASA Abbe Rifkin was one of four people forwarded to the Governor for a county court spot in Broweird. 6-5 that if she gets the gig she runs screaming back to Miami in 18 months. Broweird has that effect on reasonable people. That being said, we wish her good luck. 


The Supreme Court (Motto: "We're more than health care") granted cert in Moncrieffe v. Holder in which the court will decide whether possession of marijuana with intent to distribute is an "aggravated felony". The fall out here is that if the court decides it is, it will subject more clients who are foreign nationals to removal. 


MARBURY v. MADISON:
Barak Obama, Constitutional Law professor, lawyer, editor of the Harvahard Law Review and President of the United States fired a warning shot over the bow of the Supreme Court earlier this week. The Wall Street Journal responded in an Op Ed piece, part of which is reprinted here. The Journal wanted to know whether in the course of his career at Harvahard and as a Con law Professor at the University of Chicago School of Law whether the President had ever read Marbury v. Madison? 

That's a fair question after Mr. Obama's astonishing remarks on Monday at the White House when he ruminated for the first time in public on the Supreme Court's recent ObamaCare deliberations. "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," he declared.

Presidents are paid to be confident about their own laws, but what's up with that "unprecedented"? In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review. In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a "democratically elected" legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by "strong" majorities...

Rumpole yawns: The President calls the court activists when they strike down a law he supports and un-caring conservatives when they uphold laws he doesn't like. Whose ox is gored? Indeed. 

THE SWEET SCIENCE

On March 24, 1962 Emile Griffith beat Benny "Kid" Paret to death. The murder was not a
 "who-done-it? " and the motive was clear:  Griffith beat the Kid to death because the day earlier the Kid called Griffith "Maricon", a Spanish slur for a homosexual.


Griffith never served a day in jail. In fact, although he committed the murder on national television before millions of Americans, Griffith was never arrested. Griffith killed the Kid during a welterweight title bout at Madison Square Garden in New York City. Google the fight if you must and watch the 12th round  on You-Tube if your dare. Griffith  delivers at least twenty five unanswered blows to the Kid's head as he lay tangled and defenseless in the ropes and the referee just watches.  Death was the price of calling someone a maricon in 1962.


The NY Times remembered the macabre anniversary in a must read piece here. That the Kid's widow lived a sad and lonely life in Miami just makes the tragedy a little more bittersweet.


We used to call boxing the sweet science. But over the years we have lost our love for the sport. The admiration of the skill of boxers has faded with the realization that the sport wrecks the participants lives. There's nothing sweet about pummeling a man to death.


KARMA KRAMER:
Oh how the mighty have fallen. And yet you knew it was coming. When two hacks charge millions of dollars to defend a member of the Miccosukee tribe in a car accident case, and then lie under oath in court about who paid their fee, you just knew it was  a matter of time before the client put the final nail in the coffin.


The Herald reports here that the tribe has filed a legal malpractice lawsuit against former US Attorney Guy Lewis and former federal prosecutor Michael Tein.


A few million dollars is the price of your former good name as a US Attorney and federal prosecutor. Lewis and Tein have set the rates.




See You In Court.


UPDATE: Judge Dresnick denied the motion to disqualify as being legally insufficient. We think that might be a bad strategic move as the case law is clear what the motion has to say and that the judge's role is to just make sure the "i"'s are dotted and the "t"'s crossed. A better move might have been to deny it as untimely which it surely was.

Preserving the Record for Appeal

THE CAPTAIN REPORTS:

THIRD DCA ...... "BUNKER" EDITION

http://www.3dca.flcourts.org/opinions/3D10-1290.pdf

Borrowing a term used by South Florida Lawyer, they describe the ongoings of our esteemed jurists who reside out West by the FIU campus as practicing in the "bunker".....

Today's sap is Joaquin Blanco. Mr. Blanco was arrested back in 2008 under case number F08-41616. Mr. Blanco was charged with trafficking in amphetamines when he sold crystal methamphetamine to an undercover police officer. Blanco claimed he was induced into making the sale by Jesus Felizzula, a State confidential informant who Blanco met at an HIV facility.

What say you 3rd DCA? "Because we find that the errors complained of were waived or harmless, we affirm."

Defense counsel’s request to voir dire the jury panel regarding their opinions on entrapment was denied. Thereafter, defense counsel accepted the jury without renewing his objection to the restricted voir dire.

There were several appellate issues, but the meat of the appeal, where the case was going to rise or fall, was the issue of the denial by Judge Tinkler Mendez of Blanco's counsel's request to voir dire the jury regarding the entrapment defense. And the last sentence of this section of the appeal is the real "rub" in the case - more like a rub in the defendant's face.

"Blanco contends that the trial court erred in denying defendant’s request to voir dire the jury regarding the entrapment defense because this prejudiced his effort to obtain a fair and impartial jury. Counsel should be given some leeway in questioning prospective jurors regarding their understanding of defendant’s defense. See Lavado v. State, 492 So. 2d 1322 (Fla. 1986); Walker v. State, 724 So. 2d 1232 (Fla. 4th DCA 1999). But, it is well settled that counsel must renew any objections to voir dire errors before accepting the jury. See Lavin v. State, 754 So. 2d 784 (Fla. 3d DCA 2000); Stripling v. State, 664 So. 2d 2 (Fla.3d DCA 1995). Here, defense counsel’s request to question the jury about entrapment was denied before voir dire commenced. Thereafter, defense counsel accepted the jury panel without renewing his objection to the trial judge’s restrictions. Accordingly, the error was not preserved below, and relief is unavailable by direct appeal."

So, what Judge Ramirez (along with Judges Suarez & Rothenberg) is telling Mr. Blanco, is sorry Charlie, (or better stated, Joaquin), but your lawyer dropped the ball, and you'll just have to catch us on the flip side with a 3.850 in order for us to entertain the "meat" of your argument on appeal.

Meanwhile, Blanco, who was taken into custody following the trial, on May 12, 2010, waited 22 months for his appeal to be heard and decided, and who has a scheduled release date from the Florida DOC of October 29, 2012, will undoubtedly be out of custody before any meaningful decision is reached on whether trial counsel's ineffectiveness, in not preserving the record, warrants Blanco a new trial.

Might they have saved the judicial system a lot of money by having the issue briefed and argued as part of the appeal? I know, appellant attorneys and judges are turning over in their bunkers right about now as I am sure there is some Rule of Appellate Procedure they starts with the number 9 that prohibits this from happening.

But, meanwhile, Blanco will have done his 30 months on his 36 month MM sentence. For good measure, Blanco does have another two years of probation that he must serve upon release. So, maybe he will learn his fate whilst reporting to probation.

Thoughts?

Cap Out ......

A MOMENT IN TIME

The setting: The highest court in the land.
The date: Tuesday March 27, 2012. 


Donald B. Verrilli, Jr., the Solicitor General of the United States strode to the podium to address nine justices, of whom at least five were going to be hostile to his defense of the use of the commerce clause to make health care legislation constitutional. 


The courtroom was hushed. The moment historic. And Mr Verrilli.....stammered. Then he coughed. Then he cleared his throat. Then he grabbed his glass of water. 


And within a few moments Justice Scalia pounced with the most favourite and tried and true argument in the arsenal of every conservative: "If the government can do this (the health care mandate) what can it not do?" Scalia thundered. Verrilli stammered. It was not pretty. 


But the questions were not surprising. This was no ambush. Verrilli had to know the questions were coming, and yet he acted more like a first year moot court student who read the wrong problem rather  than the SG of the US. 


Chief Justice Earl Warren worked hard to engineer a 9-0 opinion, giving ground on several points to get Justice Frankfurter on board. What does it say about CJ Roberts that the very best outcome in case will be 6-3? This court, like this country is politically polarized and that is not good. 



“If the stars should appear one night in a thousand years, how would men believe and adore; and preserve for many generations the remembrance of the city of God which had been shown! But every night come out these envoys of beauty, and light the universe with their admonishing smile.”
Ralph Waldo Emerson,  Nature and Selected Essays. 


Some of us find our Stars in the most unlikely of places. 


See You In Court. 

LEGALIZE DRUGS ?

Time to jump back into the fray courtesy of our new blogger: The Barrister of Ballentrae.

AN ARGUMENT BASED ON LIBERTY AND UTILITY FOR THE DECRIMINALIZATION OF DRUGS

　

I was asked by H. Rumpole to write a piece further explaining my belief that personal use and possession of drugs Should Not Be Illegal. I know that the first question is who is Rumpole; and I can only say he looks like Gary Cooper.

Many may suspect that this article will argue primarily for decriminalization of Cannabis. That a comparison of risk versus benefits and the relatively lack of harm of the herb justify its legalization. For those interested in Cannabis legalization, that please go to the NORML link,

For those Nay-sayers on Cannabis, please go to this link, Cannabis and Cannabinoids. 

This is a link to The National Cancer Institute at the the National Institutes of Health, document clearly the lack of danger and high level of benefits of Cannabis.

I need to start with a proposition that to use intoxicants , is Natural, Universal , even Archetypical, of Humans. Our Species historically has ingested substances to intox, impair and alter their/our perceptions. In every culture across the world , across recorded history, our species had used nature. Rum to British seamen. rice wine or rice beer to the builders of the Great Wall. The German Beer Law comes from the need to stop the use of wheat in beer production, causing the price of bread to dramatically increase , so the limited beer to barley.. In cultures that shun alcohol, cannabis as leaf, kif or hash is smoked, as is the poppy [ opium].  In North America Tobacco, mushrooms, and in our South West the indigenous peoples had peyote and mushrooms. In the Andes other organics, like Ayahuasca and coca leaf are used. Four -Thousand ( 4,000 ) years ago , at the beginning of Human recorded History, Egyptologist tell us that, there`are records detailing how much beer a day was supplied to the labor who built the pyramids. Ten-Thousand years ago, Those that dig in the Neander Valley tell us that they have found evidence of ritual use of drugs and consumption of beer like beverages, dating back about Ten to Twelve Thousand ( 10,000 - 12, 000 ) years ago. It is hard not to believe the anthropological evidence. Likely we Humans did not start ingesting for intoxication then, Ten - Thousand ( 10, 000 ) years ago, but we were ingesting to intox, impair and alter our perceptions FIFTY THOUSAND ( 50, 000 ) Years Ago .

Given our historical archetypical use , it can be said that use / possession is not in and of itself morally, spiritually or physically harmful nor evil. Instead it is Natural, Universal , even Archetypical, of Humans to ingest substances to intox, impair and alter their/our perceptions.

 BUT , Let me be clear, Let me scream it:

I AM NOT SUGGESTING LEGALIZING DUI / DWI. THOSE THAT DRIVE UNDER THE INFLUENCE OR WHILE IMPAIRED ENDANGER US ALL AND THAT BEHAVIOR SHOULD BE ILLEGAL ! DRINK BUT DON'T DRIVE ; SMOKE BUT NOT BEHIND THE WHEEL ; BOAT or FLY STRAIGHT

Now we must ask : What Power Does Our Government Have to Tell US, as Free Adult Citizens , What Our Intoxicating Substance Can Be. We are free willed and responsible for ourselves. Remembering the above, that DUI / DWI is and should be illegal , what right does Government have to tell me what I can use for my buzz? The Crime associated with Drugs arises from drug laws, just as crime arose from Prohibition. In Fact Alcohol Prohibition is the perfect example. By Outlawing something that people were going to do , it made criminals out of ordinary men and women, who only wanted a drink. It bred disrespect for the law, for a law that people do not like and will not follow is ignored and creates a atmosphere that all laws can be disrespected. Worse, real criminals organized to supply the forbidden but thirsted for substances. Was Capone that different from today's Mexican drug gangs or the ones us old timers remember from the Mutiny, those of Medillen and Cali .

Removing the prohibition removes most of the criminal element, does not breed disrespect of the law and most importantly does not turn everyday people into criminals by use or possession of the malum prohibitum. Liquor Stores have ads not turf wars. The States where Marijuana is not criminal have shown no increase in crime, nor are California medical marijuana stores hell-holes.

Now borrowing a page from Ron Paul. Where does the constitution authorize the Government to tell be what I can use to intox or impair myself? Seriously , the personal use of substances does not justify federal nor State action. I do recognize the right of the Federal Government to prohibit Importation. But under what stretch of the commerce clause can the Government say I cannot get high? Tell me how that is justified. Its clear` that the WAR ON DRUGS began as a policy to get those who are against President Nixon's political action and not over societal decay due to drugs. Richard Nixon and his cronies need to clamp down on the long haired anti-war hippies and the uppity civil righters, who were rioting and burning the citys and worse voting against Republicans. They all smoked dope , so going after dopers seemed hard on crime and got rid of the 'ememies'. Listen to the Nixon tapes and you will learn how manipulative and anti-citizen Our President could be. Nixon's Federal War on Drugs was created in truth to get the Young anti-war movementers and young black activists out of the voting rolls.

Let us now turn to the Utility or Efficiency of The War on Drugs. Drug use over the last Forty (40 ) years has stayed at relatively the same rate. Some will, Some will not. Some like this, Some like that. The all out effort of the feds and the state governments have not stamped out the desire. But as I have` advanced at the beginning of this article , it is Natural, Universal , even Archetypical, of Humans to ingest substances to intox, impair and alter their/our perceptions. In every culture across the world , across recorded history, our species had used nature this way and laws will not stop that.

I know some will advance the argument that we are protecting society from the harm of abuse. The desire to intox is natural and not evil and that the bad results of drugs flow from its illegality. Considering that we can not or have not cut the desire, who and how are we protecting society by creating crime and disrespect for the law. Others will suggest that we need to protect the user from Themselves { yes I change tense. I like 3rd person plural instead of He/She Her/Him, etc}. So we make convicted felons out of users to protect then from the 2 or 3/10s of a gram [ 2 or 3 /280 of an oz. } of powder or rock. Broward sends them to prison. They can not get work as convicts, can not drive, can not vote. This is To Protect Them?

Last week I reviewed Two ( 2 ) days calendars of Four ( 4 ) Felony / Circuit Court Divisions in the Justice Building. I counted the possession, possession w/ intent, delivery & sales and tampering . I Did NOT count any grow houses or trafficking type cases. It is also important to remember that it cost almost One Hundred ( $ 100 ) dollars a day to imprison someone. Booking costs at least that. In TWO Days ( 2 ) THIRTY - FOUR ( 34 ) people had arraignments for felony drug arrests .Seven (7 ) were No Actioned,Fourteen set for Trial. ONE HUNDRED SIXTY FIVE (165 ) extra days Beyond CTS in DCJ was given , remember at 100 / day { that's $16500 tax dollars} , the rest were Bound-Down to County or CTS. What a waste of Time, Money and Effort.

Div 7 8

Div 10 10

Div 16 8

Div 21 8

　

The War on Drugs is FORTY ( 40 ) Years Old. I have been practicing a quarter century. I have not seen a change in the flow of arrests for drug possession at the Justice Building. To continue a policy that does not work, is repressive , wastes resources and tax dollars is Bad Policy, if not stupid. Legalize it. Or admit its a money maker in court costs . That is unlikely since it seems it costs more to arrest , process and lock-up that comes back in court costs, especially from the indigent. Perhaps we can make it a civil infraction and give a ticket. THAT, at least would raise revenue and make sense.

TODAY'S THE DAY FOR THE COMMERCE CLAUSE

UPDATE: Dresnick signed the disqualification order. Can someone explain to us why he signed an order for a motion that was so clearly untimely as per the rules of Judicial Administration? 


Will arguments today at the U.S. Supreme Court  may just well herald the beginning of the end of judicial activism via the Commerce Clause? We will be listening to the arguments this afternoon and tonight. 




STAND YOUR GROUND
Who wants to be the next lawyer to argue a stand your ground motion to a court or jury? Not us. 

When will a real criminal defense attorney step forward and start defending George Zimmerman? While we have our concerns about his actions and the non-action of the Sanford police department, there is beginning to be the drum beats of a lynching of Zimmerman before the man is even arraigned.
Can Zimmerman get a fair trial in Florida or anywhere? 


PEACE PIPES AND PREJUDICE:
It's been nothing but one headache after another for top tough-guy lawyers Michael Tein and Guy Lewis in their multi-million dollar defense of two members of the Miccosukee tribe in a fatal car accident case. At issue is who paid the former feds? The family or the tribe? The lawyers testified that the family paid them 2-3 million dollars and the family says that was the last of their money and they cannot pay the judgment. 


"Horse-hockey!" (or words to that effect)  replied Judge Dresnick who found that the lawyers committed perjury (a fancy word for "liar liar pants on fire"). There are depositions and a hearing on sanctions set for  May and wouldn't you know but that Tein and Lewis have just decided that kindly old Uncle Ronnie Dresnick can't be fair. 


Dresnick was alleged to have said "I can say 'pass the peace pipe' " during a hearing in August. And although the Rules Of Judicial Administration require that motions for judicial disqualification be filed within thirty days, Tein and Lewis decided now was the time to act. What's seven months between friends? The Herald recounts the kerfuffle here. 


Cowboys and Aliens (which was a better movie than the critics gave it credit for) anyone? 


See You In Court. 

HEALTH CARE BATTLE AT THE SUPREME COURT

Starting today the Supreme Court begins three days of historic arguments on the challenges to the current health care law.  The case will receive a total of six hours of oral arguments,  the most the court has scheduled in the last forty years. 


In this corner, sporting a natty salt and pepper mustache is Donald Verrilli Jr., the Solicitor General of the United States.  This will be Mr. Verrilli's lucky thirteenth argument before the high court and he will be defending the law. 


In this tea party/US Chamber of Commerce sponsored corner  is
 Paul D. Clement, a former Solicitor General of the United States (under the Bush-duh! administration). Mr. Clement, the current darling of the right,  will be arguing his 54th case before the U.S. Supreme Court.  Mr. Clement has argued more cases before the Supreme Court since 2000 than any other lawyer. He is a formidable opponent. 


During the three days of oral arguments, the court will address four separate issues and both Mr. Verrilli and Mr. Clement will handle three of the issues.  On Monday the court will spend 90 minutes on our favourite issue: "why are we here?" otherwise known as the jurisdictional issue. Specifically the court will examine whether the 1867 Anti Injunction Act which forbids suits for the purposes of restraining the assessment or collection of taxes applies to this case and makes the rest of the arguments moot for lack of jurisdiction. 


But Tuesday is when the fireworks will really  fly when Verrilli and Clement face off for two hours of oral argument (two hours!!) on the issue of whether the law's "mandate" requiring everyone to obtain health insurance is constitutional. Does the interstate commerce clause of the constitution give congress the power to pass a law with such a requirement? 


For those of you who have been to a Federalist Society meeting you know how the commerce clause argument bugs conservatives. The commerce clause  has been used to uphold laws as varied as civil rights laws (remember Katzenbach v. McClung,  379 U.S. 294 (1964) and Ollie's Barbecue?) and laws preventing farmers from eating the wheat they grew (Wickard v. Filburn  317 U.S. 111 (1942) has always been a thorn in the side of the Tea  party/Federalist/Scalia/Thomas crowd). 


The question for legal theorists has never been about whether discrimination is OK, but whether the constitution specifically prohibits it and whether the use of the interstate commerce clause has just been a legal fiction to boot strap social legislation engineered by the courts. In other words is it good to decide cases by whose Ox is gored?  Because if the courts can do that (which you might agree with like the civil rights cases) what can't they do (like stop you from eating  the wheat you grow)? Just don't mention Bush v. Gore to conservatives because that makes them  uncomfortable. 


Rumpole predicts that the mandate argument is where Scalia and Thomas see the meat of this case and a hunting they will go with Roberts and Alito to get "Two sides Tony"  Kennedy on their side of the issue.


The  schedule for the remaining arguments  is  that for ninety minutes on Wednesday morning the court will hear arguments on severability and at 1:00 pm  Wednesday there will be an hour of arguments on expanding medicaid under the challenged legislation. No truth that ESPN will be broadcasting the arguments live but for you appellate nerds, the SCOTUS blog will have audio and transcripts of the previous days arguments on line. 


See You In Court.

SODA KILLS

BREAKING: John Goodman (Roy Black's client) was convicted of DUI manslaughter and vehicular homicide in West Palm Beach Friday afternoon. Many members of the South Florida legal community have been following the trial through streaming coverage on the Internet. The Defendant was taken into custody. Sentencing is for April 30, 2012. As an aside, we believe that the defendant cannot be sentenced on both counts.

Rumpole's Rule Of Trial #2: Avoid at all costs a Friday afternoon verdict.

 We want to keep the discussions on this topic going, so we are going to leave the post up a while longer. But this is just crazy: if you type in the word "illuminati" backwards into the address bar after www and add dot com you get taken to the National Security Agency website. Weird. 


































Sorry, we know this is off topic, but the NY Times reports that the consumption of even one sugary drink a day was linked to a 19% increase in heart disease. The study followed 48,833 male health professionals over 22 years. 


So put down the coke or pepsi and step away from the glass. It can kill you. 


A Florida Grand Jury will be impaneled to investigate the death of an unarmed seventeen year old minor child.  Trayvon Martin was shot and killed by a 26 year old neighborhood watch volunteer. 


We just can't help but think that if the roles were reversed and Trayvon Martin shot and killed Mr. George Zimmerman that Trayvon Martin would have been immediately taken into custody under the "arrest now, let the jury sort it out five years from now" philosophy we all too often encounter. 


So what's different about this case? Nothing other than the respective races of the individuals. Sorry, but do you really think the police and state attorney would have been so deliberative if the shooter was an African-American teenager? In our experience we have never seen that type of caution. 


We are not advocating the lynching of Mr. Zimmerman. Nor do we decry the failure to immediately arrest him. Getting the facts and getting it right is important. The delay just becomes harder to swallow because we all know the matter would have been handled differently if the roles were reversed. 




SPEED ALSO KILLS
Or at least gets you a withhold and $3300 in fines. Remember the City of Miami Officer Fausto Lopez? He was  popped for speeding in Broward by FHP last year.  The incident set off an internecine war between the two departments. Ace criminal defense attorney (and soon to be Federal Magistrate) Bill Mattheman has negotiated a plea to a withhold and costs of prosecution. No probation. 
The Herald reports that Officer Speedy averaged +100MPH on his way to work 114 times in the year before he was pulled over by FHP. 


Quite a commute.


See You In Court. 

JQC - JUDGE ANA MARIA PANDO

THE CAPTAIN REPORTS:

JQC - JUDGE PANDO - NOTICE OF FORMAL CHARGES .......

County Court Judge Ana Maria Pando has been formally notified by the Florida Supreme Court today, through notice to her attorney Robert Josefsberg, that the Investigative Panel of the Florida Judicial Qualifications Commission has determined that probable cause exists for formal proceedings to be "instituted against you to inquire into charges based on allegations that you violated, Canons 1, 2A, 3B(1), 3B(5), 3E(1) and 5G of the Code of Judicial Conduct."

Notably, they are considering her prior conduct:

In paragraph seven of the Notice of Formal Charges, it states that: "The Florida Supreme Court previously reprimanded you. In re Pando, 903 So. 2d 902 (Fla. 2005). In that case, you stipulated that you knowingly or recklessly accepted improper campaign contributions. The fact and the timing of the campaign contributions by Mr. Cereceda through his corporate entities, coupled with your actions on behalf of Mr. Cereceda, give the appearance of impropriety."

The Notice concludes by stating:

"These acts, if they occurred as alleged, would impair the confidence of the citizens of this State in the integrity of the judicial system and in you as a judge; would constitute a violation of the Preamble and Canons of the Code of Judicial Conduct; would constitute conduct unbecoming a member of the judiciary; would demonstrate your unfitness to hold the office of judge; and would warrant discipline, including, but not limited to, your removal from office and/or any other appropriate discipline recommended by the Florida Judicial Qualifications Commission."




The Notice of Formal Charges can be found here:


http://www.floridasupremecourt.org/pub_info/summaries/briefs/12/12-521/Filed_03-19-2012_Notice_Formal_Charges.pdf




Judge Pando is running for re-election in Group 10 of the County Court. Soon after this matter became public she drew opposition from attorney Diana Elizabeth Gonzalez who has been a practicing attorney in Florida for less than eight years.


Now let the process take its course. Judge Pando has 20 days to respond.

In other news, the JNC announced today that they are accepting applications for those wishing to replace Judge Maxine Cohen Lando. Deadline is April 18th.



Captain Out .....

SUPREME COURT NEWS (more than you think)

Corporate Cash:


Does Apprendi apply to the judicial imposition of fines? Oral argument today at SCOTUS in Southern Union Company v. US.   While fines remain the first and usually only sanction a Judge can impose against a corporation (corporations  have special dietary needs that make incarceration difficult),  we predict that fines will become a more standard part of state court sentences for regular Joes and Mary Janes. Diminishing state budgets signal the high point in the incarceration frenzy that began in the mid 1980's. Because we can no longer afford to lock up more of our citizens that South Africa did during apartheid, or the Soviet Union did under Stalin, and because we realize that it just doesn't work, alternative sentences will now become more prevalent. 


Is that a $$$ that you just saw pop up over the head of your favourite robed reader? Lets see if the 
Supremes make it easier to buy your way out of a year and a day. 


DOLPHINS. 
Nobody wants to be the Fins QB. Not Peyton, not Matt Flynn, maybe not even Alex Smith who scampered over to Davie on Sunday because his agent told him to turn down 8 million per year for three years a week ago and now the 49ers are throwing 70-90 million at precious Peyton (whose agent, Tom Condon,  happens to be Smith's agent as well.). 


 When the music stops one team and one QB will be without a chair at the dance. That's your next Dolphins QB. Not a great way to run a team is it? 


Justice Thomas...
For President? 
ATL reports that idle chit chat continues that should the Republican Convention deadlock this summer in Tampa (although a good meal at Berns should help the GOP big wigs settle their disputes) Justice Clarence Thomas could emerge as a compromise candidate. 


Rumpole says: Never happen. 
You have to speak to run for president. 


Enjoy the week. 

NCAA

UPDATE: As the Barrister points out in the comments, Herald Ace David Ovalle breaks the story of the SAO being unable to file felony charges against a Gulliver prep teacher who seduced and slept with two female students under the age of 18.  Misdemeanor battery charges were filed. 


NCAA Tourney...blah blah blah..  FSU's gonna make the final four, so is North Carolina, and Kentucky and some cinderella team from the last bracket.  Tell us something interesting. 


Here's something. Remember the Government's massive coverup during the prosecution of the late Senator Ted Stevens  (R. Curmudgeon, Alaska)? Remember how after the conviction the case fell apart when it was discovered that the government hid evidence including exculpatory statements from witnesses? 
The court appointed investigator into this fiaco released his report here. 


“The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness,” wrote Henry F. Schuelke, the investigator assigned to the case." 


But other than that Brady is alive and well in the federal courts, and other than that how was the play Mrs. Lincoln? 


CHIEF OF MIAMI BEACH
Ray Martinez, who worked for 21 years for the City of Miami and for the last 11 years as the deputy chief of the Miami Beach Police Department is the new Chief of police for the Beach. Chief Mark Overton of the Hialeah  Police Department (Motto: "proudly beating up defendants for the last fifty years") was runner up and accepted the offer to become Deputy Chief of the Beach. 


APPLE IPAD
Iteration #3 goes on sale today. Get in line early. In fact when you're in line, look for DOM who thinks the opening days of the NCAA are the most exciting sports days of the year. If you see him, you guys can fill out your brackets together. Have fun. 


Shark bites man (no lawyer involved).

BEWARE

Caesar:
Who is it in the press that calls on me?
I hear a tongue shriller than all the music
Cry "Caesar!" Speak, Caesar is turn'd to hear.

Soothsayer:
Beware the ides of March.

Caesar:
What man is that?

Brutus:
A soothsayer bids you beware the ides of March.

Julius Caesar, Act 1, scene 2. 


DOM posted the link to watch HRH Roy Black in trial live in West Palm. The link is here. 
Fed prosecutors tuning in have been confused: they can't understand why a case agent is not sitting at the prosecutor's table.  "Prosecutors try cases by themselves in State Court? The next thing you know State courts won't punish defendants for testifying and losing." 


When we last left Attorney Ira Still III shortly after his motion for attorneys fees was argued in Broweird,  Judge Matthew "Money Ball" Destry  had awarded Mr. Still a total of $20,000.00 for two cases that he tried and won. Mr. Still was seeking about $110,000.00.
Still filed a petition for writ of certiorari and the 4th DCA granted it here; vacated the trial court's order, and remanded the case for proceedings consistent with paying Mr. Still more than $13.00 per hour. 


A Rumpolian "Well Done" Mr. Still. Well done indeed. 


We're back!

DO NOT PASS GO- PROCEED TO THE STREET CORNER- THAT'S AN ORDER!

The Barrister notifies us of the Herald story on Homeless Sex Offenders:


Homeless Sex Offender camp returns, Not under Bridge but on NE 79 Street by thr RR tracks.

The Herald Story :
Miami sex-crime offenders camp on slab of sidewalk in Shorecrest.

Two years after dozens of sex offenders who’d lived under the Julia Tuttle Causeway were moved into apartments, offenders recently released from prison sleep on a Miami street. ..

State probation officials are aware of the sidewalk camp — in fact, the men there say their probation officers directed them to the corner after leaving prison. 

The Barrister 


Rumpole's stand in says: This is what we have come to: probation officers are directing released inmates to a STREET CORNER! What a great great legal system we have here in Florida. And aren't you just left in awe and wonder at the way our legislators and governor jump in right away to fix a problem like this? 




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