KILL THE CRAZY

The State of Florida executed a 65 year old man who suffered from schizophrenia for the last 40 years. John Ferguson was executed yesterday at 6pm, and pronounced dead at 6:17 pm. Here is David Ovalle, who witnessed the execution (Florida's macabre and bizarre rules require a witness from the county where the defendant was sentenced to death):

STARKE -- After a life of bloodshed on the streets of Miami-Dade, then 35 years lingering on Death Row, Miami murderer John Errol Ferguson’s eyes darted to the execution supervisor looming over him.

“I just want everyone to know that I am the Prince of God and I will rise again,” Ferguson mumbled.

Then, the jowly and grayed 65-year-old rustled his feet underneath the white sheet of the gurney, lifted his head and peered intently at the witness window of the death chamber. At 6:01 p.m. Monday, the lethal drugs pumped through his veins, his head rested down, his mouth gasped and life slowly and quietly slipped away.

Ferguson, a killer of eight and at one time responsible for the largest mass slaughter in Miami-Dade history, was pronounced dead 6:17 p.m.

These are very enlightened times we live in.  We won't pay for medical treatment for the mentally ill, but we'll spend millions to execute them when their illness drives them to acts of depravity. And when you think about it, where does the responsibility for the lives Ferguson took lie? With a man who thinks his is the Prince Of God, or with a government that didn't help him get treatment, which in turned allowed him to commit horrible acts of murder. 

JUDGE DEEHL VIDEO
On to something nicer, this is the link to the video of the memorial service for Judge Deehl who served this community for fifty years as a judge. Mostly narrated in a wonderful way by the Judge's son David, it is well worth a view. And while it was completely unnecessary, it was very kind of David at approximately the 1:00 mark to mention this Blog 

See You In Court. 

NOTHING, REALLY

UPDATE: The State of Florida executed John Ferguson tonight at 6:15 pm:

David Ovalle ‏@DavidOvalle3051h

Miami killer John Ferguson's last words: "I just want everyone to know I am the Prince of God and I will rise again." @MiamiHerald

UPDATE: 
A-Rod led the list of baseball players suspended. catching a suspension for the rest of this year and all of next year. 
THE BEST TWEET OF THE YEAR: "A-ROD is playing third, batting fourth, and taking the fifth." 

It's too damn hot. I think I am going to go away again to some place cool. 

We're on an execution watch as the State of Florida gets ready to kill the self described "Prince of God", who is also known as John Ferguson.  Ferguson was part of a robbery gone wrong in Miami in 1977 that led to 7 people being executed. Ferguson is also mentally ill and probably has little idea what it means to be executed. Let's see, what other country executed their mentally ill citizens? Hmm.... If the Nationalist Socialist Shoe fits.....

Congrats go out to ASA Gail Levine for the successful prosecution last week  of the attempted murder of Miami Dade Detective Carlos Castillo- who was smashed over the head with a concrete block. 

The Dolphins played football on Sunday night. How about that! (Although the first play by the Fins, a lost fumble on a handoff, does not portend well for the season.).

I suspect DOM will cover this in more detail, but this report reveals that the FBI gave permission for confidential informants to break the law over 5,600 times in 2011. 

I also suspect that Jimmy Bulger would be interested in the report, as he claims FBI agent John Connolly pretty much gave him permission for his reign of terror for 30 years in Southie in exchange for Bulger informing on La Cosa Nostra. 

If you like baseball, this A-Rod/Bio-Genesis/suspension mess really stinks. The Yanks want out of the remaining $100 million on the contract. MLB wants Rodriguez to take a voluntary suspension for all of this season and all of next season, and A-Rod just wants his $100 million. Nobody wins here and baseball loses. 

If you missed it yesterday, President Obama turned 52. What do you think he's going to be doing when he's 60?

Did I mention it's really too hot to work? 

See you in court until we get outta here for a while. 

VINDICATION

It wasn't that long ago that the world was caving in on Attorneys Guy Lewis and Michael Tein. 
Judge Dresnick was holding contempt hearings into allegations they lied about the source of their fees in the defense of their client in a civil wrongful death case. Bar complaints were in the works. The Herald was giving them as much bad publicity as you will ever see two good attorneys get. And bashing them was easy: they were successful civil lawyers who by all appearances had gotten caught with their fingers in the Miccosukee cookie jar. It's called schadenfreude. 

The piling on included, regrettably, your blogger and this blog. There have been times that by blogging we have made grievous errors that have hurt people. Mistakenly and prematurely announcing the death of a beloved judge was one such error we will never forget, or forgive ourselves for the pain we caused his family. And believing the Herald's slanted, malicious, and downright erroneous coverage of attorneys Michael Tein and Guy Lewis was another mistake that hurt innocent people. As a criminal defense attorney, we should have known better. 

Then Attorney Paul Calli got involved in the case. And what he did is what we all aspire to as defense attorneys. He undertook the representation of two clients who had almost no friends left. The judge was out to get them. The media was engaging in a very public lynching of their reputations. And the Bar had opened a file. But Calli had one thing on his side: the truth. And luckily for Tein and Lewis they had the right lawyer for this seemingly impossible defense. 

In short order Calli turned the tables. He got his client's stories out. He successfully defended them before Judge Dresnick, exposed the other side's mendacious tactics, and carried the day in civil court. 

This week saw full vindication for attorneys Michael Tein and Guy Lewis as the Florida Bar closed out the complaints with a no probable cause finding and began an investigation into the attorneys for the Miccosukee tribe. The comparison in criminal court is like getting a not guilty and then having the cops arrested for lying. It was a truly remarkable feat of lawyering and one worthy of praise. 

So there you have it. A few lessons learned, two lawyers have their reputations restored, and one damn fine job of lawyering. Not bad. Not bad at all. 

Enjoy this hot summer weekend. Dolphins football starts Sunday.

JUDGE HERSCH PROFILE

Judge Richard Hersch (motto: "NO, the OTHER Hersch") was profiled the other day in the DBR. 
For those of you (like us) who don't shell out the shekels for the DBR, here is a highlight of what was written:
Richard was born, he was precocious in school, one day a teacher predicted he would be a lawyer, and voila, one day he became a husband, a lawyer, a dad, a pilot, a diver, and a champion pinochle player (just kidding about the last item.)

When he's not on the bench, you're likely to find Miami-Dade Circuit Judge Richard Hersch high in the air or deep in the sea.

He loves to fly and dive, and credits both with teaching valuable life skills.

"They're things you better do with some focus and precision," he said. "They're exercises in risk reduction."

Hersch got his pilot's license in law school...

He wanted to fly as long as he can remember.

"My father was a flight engineer on B-24s," Hersch said, "When I was old enough to look over the coffee table there was a flying magazine. So I always knew from when I was about 2-foot tall that I was going to be a pilot."

Deciding to be a lawyer came just a little later, in elementary school.

His parents went to a parent-teacher conference and asked how their son was doing, Hersch said. "The teacher told them, 'He talks a lot. He could be a lawyer.'...

Wife And Partner

"I had been clerking long-distance for a group of six or seven lawyers," Hersch said. They didn't hire him, but they offered him space and a flow of cases. Plus, his wife got a job as an associate with a South Florida firm. "We graduated, got married and opened our law firm all in the same summer."

Hersch ran his solo practice until 1998. Then his wife, Patty Talisman, joined him.

"When our youngest was born, she came over to me," he said. "We were a mom-and-pop firm until she died about four years ago. It was great working with her."

Talisman did appellate work. Hersch did criminal work, including drunken-driving cases that had a lasting impact in Key West.

"I closed down their breath-testing program," he said. "It's still closed down, since December 2008. ... I convinced a county judge there they had to provide the source code, the software and a machine for us to test before they would allow the introduction of any further."

After his wife died of polymyositis, "what had been a mom-and-pop firm became just a pop firm...

Their two daughters helped him through it. "It was difficult at the time, but I was fortunate to have a mission with these girls."

Be On Time

Governor Rick Scott appointed him to the bench in February 2012, and Hersch has been in the juvenile division ever since...

"I was a lawyer for 30 years," he said. "I think what influenced me the most about that was sitting in the courtroom waiting. I think judges should be punctual. ... Since you're a public servant, you're there to do the job to run this unit. You could at least be on time."

He said he has a dual role on the bench — dealing with the juveniles and guiding new attorneys.

"Here in juvenile, these are young lawyers at the beginning of their careers. So I like mentoring them. I like working with them. They have tremendous passion, intelligence. Seasoning will come," he said. "I'll stop right in the middle of trial and say you can't do that. Don't do that again."

Rumpole says: Nice article about a nice guy who is a really good judge. 

MEMORIAL SERVICE FOR JUDGE ROBERT DEEHL

We previously reported the sad news of the passing of Retired County Court Judge Robert Deehl, who at the age of 87 died on June 28.

There will be a celebration of the life of Judge Deehl tomorrow: Thursday August 1, 2013 at 1pm  (one comment said it is at 3pm, you should call and check: 305-667-3697) at the Unitarian Universalist Congregation at 7701 SW 76th Ave, Miami, FL, 33143. 

We've learned that Judge Deehl's family requests that Judges who attend wear their robes. 

Judge Deehl as a kind and decent man who devoted his life to our community and served his country in combat during WWII; the REGJB owes him a full turnout of judges and lawyers.

See You In Court.

SEX AND ALCOHOL

There are two things that will get you a guaranteed headline whilst serving as a public servant (prosecutor, Pd, judge) or just while being a famous attorney: being drunk in public, or getting caught having sex in your chambers (office), etc. And of course, all candidates for the office of Mayor of NYC should avoid, whenever possible, sexting their "junk". 

EXAMPLE ONE: The honorable Susan Flood of Polk county is in the midst of a storm of controversy (which in Polk county can erupt from something as mundane as not serving sweetened ice tea at a social on upwards to this) over allegations of another Judge's judicial assistant that she caught the judge in flagrante delicto (latin for "goin at it like a hot knife through judicial butter" ) with her bailiff on her desk.   The moral of the story being there's a reason they leave the light on for y'all at Motel Six. 
The story and video are here. 

EXAMPLE TWO: Some young poor schlub of an ASA got into it with a Beach cop the other night outside of the Purdy lounge and, as astonishing as this may seem to those of us in the criminal defense bar, ended up in cuffs and charged with disorderly intox. Ovalle and the Herald have the story here. 
The moral of this story is that alcohol fueled late nights outside the Purdy Lounge have derailed more legal careers in Miami than the hardest exam the Florida Bar ever gave.  That and looking at a Beach cop the wrong way (especially one off duty and looking for O/T) is the quickest way to see the inside of the bond hearings. 

So there are your lessons for today, learned by some the hard way. 

See You In Court. 

WHAT IS RUMPOLE READING?

Hot summer days and steamy summer nights require a large glass of iced tea, or a beer right out of the cooler with bits of ice running down the glass bottle, a comfortable chair or hammock in the shade, the sounds of the ocean lapping at the shore, and of course, a good book. Put a well played baseball game on the radio, and you have heaven. Or something close to it. 

Books we recommend:

1) "Whitey Bulger, America's most wanted gangster,  and the manhunt that brought him to justice. "
Bulger is much in the news these days as he grumbles and curses his way through his federal trial in Boston. Bulger has become for crime authors, a mini-industry, with volumes of work written by former associates, crime reporters, and wannabes of both genres. But the definitive work on Bulger was done by Kevin Cullen and Shelly Murphy, two Boston Globe reporters (Bulger hates the Globe, as you will see, he once attacked the building twice in two nights, shooting it up with glee over the Globe's support for mandatory school busing in 1974.) You can't really understand Bulger,  his pal- disgraced FBI agent John Connelly- convicted in our own REGIB for a hit on a witness- and their story without understanding "The Town"- as the locals call Southie Boston. The book is as much a fascinating history of Southie and the internecine fighting between the Italian Mafia, the various Irish gangs vying for power, the Boston Police, and the feds, as it is a history of James "Whitey" Bulger. This is a page turner that will have you dropping your "r"s in no time. 

2) "A Blaze of Glory" and "A Chain of Thunder" by Jeff Shaara.  Longtime and careful readers of the blog know that we are experts in, inter alia, the Civil War.  But don't even think of reading this book until you have read Michael Shaara's "Killer Angels" the Pulitzer prize winning novel of the four days of Gettysburg. Killer Angels is perhaps the best historical war novel ever written; it is certainly the best Civil War novel. Michael Sharra's is Jeff Shaara's father, and he died way too soon. But his son has done a fine job carrying on the tradition, and once you read Killer Angels, you can work your way through  "A Blaze of Glory" ( about the battle of Shiloh) and "A Chain of Thunder"  (about the siege of Vicksburg). 

3) "The Bookman's Tale- a Novel of obsession" by Charlie Lovett.  If you love books,  are interested in Victorian England, obsession, love, and mystery, then the story of a young bookseller who retires to the English countryside after the untimely death of his wife is for you.  After purchasing an 18th century book about Shakespeare forgeries, a watercolor of his wife- impossibly of his wife-comes tumbling out from between the pages, and the mystery is on. 

4) "The Yard" and "The Black Country" by Alex Grecian. The Yard is the first of Grecian's Scotland Yard Murder Squad mysteries. The Black Country is the second in the series. If you love England, and murder mysteries like we do, then you can't go wrong with these two books. 

5) "The Elegant Universe" by Brian Greene. A dense and at times thrilling explanation of the universe, and the physics and mathematics that explain it. For us, the challenge was reading it in German: "Das Elegante Universum", but only if you're really in need of a challenge. 

So there you have it. Load up your beach bag, or fill up your Kindle, find a shady area and a comfy chair and plop down with a cooler of your favourite beverage, and enjoy your summer. 

See You In Court. 

BOMA-YE !

Spence-Jones Can't Run: In case you missed it, the 3rd DCA slammed the door shut on City Of Miami Commissioner Michelle Spence- Jones ability to run for a third term. The decision is here. 
The precedent is this:  "When you are elected for a second term as a city of Miami Commissioner, suspended because you are facing criminal charges, then win a special election to fill your own seat, then suspended again, then acquitted of the criminal charges (Down goes Frazier! Down goes Richard Scruggs!)  and then re-instated, you have served as full a term as defined, and cannot run for a third term under the pretense that you did not get a full second term. "

It's easy if you take a deep breath before you say it. 
There's also this- you get your emoluments. Really. No fooling. The decision says so: 

"She received full back pay and the emoluments and allowances for the period of her suspension."

Who's In Trial? 
Thankfully not us. It's too damn hot to work. 
But ASA Gail Levine and defense attorney Charles White are battling over the case where defendant Michael Robertson is accused of attempting to kill Miami Dade Detective Carlos Castillo by hitting him with a cinder block thrown from a building and then running over his body with a car. It's a miracle that Detective Castillo survived. We often don't remember just how dangerous the job of police officer is. 

David Ovalle is happy to be back in Miami and covering trials after his Zimmerman experience. You can follow Ovalle's coverage of the trial on twitter @davidovalle305.

David Ovalle ‏@DavidOvalle30524 Jul

I missed local crim court. Only in #Miami does judge make sure jurors are comfy, ask if they need stretch break or a shot of Cuban coffee.

Expand

You can follow all of our witty thoughts @justicebuilding and speaking of secret twitterers (?) everybody wants to know who's behind the twitter handle  @draculawyer? 

In case you missed the beat-down of Scruggs by Spence-Jones, here is the forerunner to that knockout:




Down Goes Frazier! And suffice to say Frazier was beaten so bad he never got all his emoluments back. Foreman looked unbeatable. Until the Rumble in the Jungle....Kinshasa, Zaire, October 30, 1974, when the phrase "Ali boma ye" entered the sports lexicon for the ages.

See you in court.  Spence-Jones boma-ye!

JUST ADD BUTTER

Tropical Storm Dorian
Updated apocalyptic cone: Thursday at 3:40 pm.

We'll follow it for you, although there aren't many hurricanes in the Sierra Nevada mountains. 

BREAKING: PRINCE GEORGE ALEXANDER LOUIS
Royal baby named....

The Florida Lobster mini-season opened at 12 midnight Wednesday. 

Here is what this means: 

People will forgo buying a lobster for about ten dollars a pound to harvest their own, at a cost of, considering fuel, boat, and all expenses....perhaps $500/pound. 

But it makes you feel good.  Like a caveperson providing food for your tribe. 

We like ours on the grill, a little key lime, butter and a dash of hot sauce. 

Add cold beer. 

Enjoy. 

Be safe. 

JUSTICE SEQUESTERED

Here is the NY Times article on the effect of the sequester on the Federal judiciary: $350 million in budget cuts:

The $350 million reduction in the federal judiciary’s budget for fiscal 2013 has resulted in a roughly 8 percent cut to the network of high-quality federal defender offices across the country. It has forced the layoffs of many experienced lawyers who have devoted their professional careers to the underappreciated and underpaid work of representing indigent federal defendants. And it has inflicted a pay cut on the defenders who remain on staff in the form of up to 20 unpaid furlough days.

These hits to the core legal staff have been accompanied by other blows, including reductions in lawyer training, research, investigation of cases and expert help, including interpreters. .. That things have reached this point is a deep embarrassment for a nation grounded on the rule of law. Yet it appears that the situation is about to get much worse. Federal defender offices have been told to prepare for another round of cuts of roughly 14 percent for the 2014 fiscal year that begins Oct. 1.

Rumpole says: You pay for the justice you get. In state court we have always said that the pay for public defenders and private court appointed lawyers has not kept pace with the dramatic increase in sentences and minimum mandatories. And it's not just lawyer pay. A good lawyer is worth a warm bucket of spit without the aid of investigators and experts. You can't try a case without any ammo. 

If society wants to warehouse felons- violent and non-violent alike- then society should be prepared to pay for the privilege of incarcerating these people forever- and that means insuring they get a great (not an adequate) defense.  

See you when we get back. 

RUMPOLE AT REST

44 YEARS AGO TODAY

Perhaps the greatest day in the history of humanity. And perhaps the greatest achievement from the greatest country the world has ever known. This is what free men and women, given the power and chance to achieve, can accomplish: 





"Houston, Tranquility base here. The Eagle has landed." 


"That's one small step for man..."

THEY SAY IT NEVER RAINS IN SOUTHERN CALIFORNIA

I like summer, but I don't like sweating. 

I like fall the best, which makes living in South Florida difficult. 

I like watching golf on television more than I like playing golf. Golf is too sedentary. 

There is nothing better for reading than a Kindle. I love books. I love book stores. But my Kindle is indispensable. 

There is a timeless beauty to a well played baseball game. The ebb and flow and strategy of a close game is uniquely American. 

The Dolphins will disappoint again this season. 

The news that increased consumption of fish oil increases your risk for prostate cancer has me flummoxed. 

But the secret to good cardiovascular health, besides daily exercise, is consuming garlic supplements. Trust me on that. 

I am not as excited with Miami's dinning scene as others. In fact, I'm downright bored with it. 

The more television channels there are, the less I watch T.V. 

Miami needs a vibrant independent film scene. That would be a rising tide that would lift all boats.  A few more independent bookstores would be nice as well. 

Every time I take a case out of town, I regret it. 

I am obsessed with England, Ireland, Scotland. 

I KNOW that I shall meet my fate
Somewhere among the clouds above;
Those that I fight I do not hate
Those that I guard I do not love;
My country is Kiltartan Cross,
My countrymen Kiltartan’s poor,
No likely end could bring them loss
Or leave them happier than before.
Nor law, nor duty bade me fight,
Nor public man, nor cheering crowds,
A lonely impulse of delight
Drove to this tumult in the clouds;
I balanced all, brought all to mind,
The years to come seemed waste of breath,
A waste of breath the years behind
In balance with this life, this death.

An Irish Airman Foresees His Death, Yeats. 

SCHWARTZ v. MILLER

A couple of rules to live by: You don't tug on superman's cape; you don't spit into the wind; and when the 3rd DCA tells you TWICE not to sentence a defendant as a Violent Career Criminal, you better damn well listen. Unless you're judge Bronwyn Miller. The decision in  Hearns v. State,  lets all of us know what happens when you ignore the 3rd DCA and Judge Schwartz, because even in winter, the lion can roar.

In a nutshell, here's what keeps happening: Judge Bronwyn Miller keeps sentencing poor Mr Hearn  as a violent career criminal. And the 3rd DCA (and once the Supreme Court) keeps telling her she can't do it. Give her an A for tenacity, and an  F for fairness and common sense. 

"It is unnecessary to detail the depressing story of the lower court’s and the state’s failure to follow our, and the supreme court’s, repeated, express, and emphatic (1) holdings that, because one of the three offenses relied upon to establish Hearns’s status as a “violent career criminal” [VCC], as part of the substantive charge of possession of a firearm by such a person, that is battery on a law enforcement officer, did not qualify for that designation, Hearns could simply not be convicted and sentenced as one."

And here's what FN (1) is: "And we mean it this time."

For those of you scoring at home, follow the bouncing defendant/appellant as his case goes from circuit court, to the 3rd to the supreme court, and back all over again:


I) Hearns v. State 912 So. 2d 377, 379-80 (Fla. 3d DCA 2005) (“Hearns did not qualify for sentencing as a VCC.). The fun is just beginning. 


II) State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007) (“[W]e approve the district court’s reversal of Respondent’s life sentence because BOLEO is not a forcible felony under section 776.08. . .”). Thus spaketh the Supremes.

III) Case goes back to Judge Miller, who just can't help herself and sentences Hearns as....A VCC.  Because one reversal is not enough. 

IV)  Hearns v. State, 54 So. 3d 500, 502 (Fla. 3d DCA 2010) (“By our mandate, we foreclosed the possibility of resentencing as a violent career criminal. We thus reverse and remand with directions that Hearns be resentenced in case number 98-34265 without any violent career criminal enhancement.”). Because we mean what we say and we say what we mean, sentencing Hearns as a VCC is just plain mean. (A little Dr. Seuss in the midst of all this craziness can be a good thing.)

So the case goes back to judge Miller for re-sentencing. And by now you should be seeing a pattern:

V) And the 2013 "judicial cojones" award goes to the Judge who just doesn't care what the 3rd DCA does....the envelope please....Bronwyn Miller- who sentences Hearns as a .....VCC! Again!

Which brings  us to this gem of an opinion:  
 Hearns v. State   (2013):
Notwithstanding this history, we are now faced with an appeal from another life sentence imposed on Hearns “for possession of a firearm by a violent career criminal” [VCC] This has got to and will stop. We will not engage in another futile endeavor to give the lower court still another opportunity to follow the law...
Rehearing is dispensed with. The mandate shall issue immediately.

So, who is betting that upon re-sentencing, Judge Miller, just for kicks, re-sentences Hearns as a .....VCC? Wouldn't that be something? Wouldn't you love to write the brief on that one? Wouldn't you want a color chart to gauge just which degree of crimson Judge Schwartz would turn upon learning that "woops, she did it again"?

But alas, this is not the movies. 

We think. 

Chutzpah  is the quality of audacity, for good or for bad. The Yiddish word derives from the Hebrew word  meaning "insolence" or "audacity

See you in court, where the real fun is. 



  

SOLITARY

"When Prisoners Protest". An Op Ed Piece in the NY Times yesterday by Wilbert Rideau,  here. 

THERE aren’t many protests in prison. In a world where authorities exercise absolute power and demand abject obedience, prisoners are almost always going to be on the losing side, and they know it.

The typical inmate doesn’t want trouble. He has little to gain and too much to lose: his job, his visits, his recreation time, his phone privileges, his right to buy tuna, ramen and stale bread at inflated prices in the commissary. The ways even a bystander to the most peaceful protest can be punished are limited only by the imagination of the authorities. . .

And yet, sometimes things get so bad that prisoners feel compelled to protest, with work stoppages, riots or hunger strikes. On July 8, some 30,000 inmates in the custody of the California Department of Corrections went on a hunger strike to demand improvements in prison conditions. Their biggest complaint was the runaway use of solitary confinement, the fact that thousands of prisoners are consigned to this cruelty indefinitely, some for decades.

I know something about solitary confinement, because I’ve been there. I spent a total of 12 years in various solitary confinement cells. And I can tell you that isolating a human being for years in a barren cell the size of a small bathroom is the cruelest thing you can do to a person.

Deprived of all human contact, you lose your feeling of connectedness to the world. You lose your ability to make small talk, even with the guard who shoves your meal through the slot in the door. You live entirely in your head, for there is nothing else. You talk to yourself, answer yourself. You become paranoid, depressed, sleepless. To ward off madness, you must give your mind something to do. In 1970, I counted the 358 rivets that held my steel cell together, over and over. Every time the walls seemed to be closing in on me, I counted them again, to give my mind something to fasten on to.

Rumpole says: If you don't know about Wilbert Rideau, you should. He served 44 years at Angola (easily the worst prison in the US). He founded  The Angolite, an award winning inmate newspaper. He won a pulitzer prize as an inmate and in 2005 he won a retrial.  He was convicted of manslaughter and the max was 28 years, so he was released. He is the author of "In The Place of Justice, a Story of Punishment and Deliverance" which you can buy on Amazon. 

A 19 year old boy in 1961, sent to Angola, a hell hole in it's own right, and then sent to hell's own hell hole- solitary for 12 years. 

Yeah- we have the best, most enlightened justice and punishment system in the world. And there's no such thing as global warming either. 

See You In Court. 

THE GREAT DISSENTER

In Geter v, State, 38 FLW D1405 (3rd DCA June 26, 2013) a remarkable thing occurred: the 3rd DCA denied, en banc (legally: the whole bunch), Geter's request to apply retroactively the US Supreme Court's decision in Miller v. Alabama,  132 S.Ct. 2455 (2012) holding that life in prison for juveniles is unconstitutional.  Geter filed a pro se petition. There was an opinion and then a motion to reconsider en banc, which the majority denied in a paragraph. 

Then Judge Emas wrote a dissent. 

The dissent is worth reading in its entirety. Judge Emas makes a powerful argument why the opinion in Miller is retroactive. Such a result would bring a bit of humanity and dare we say justice to a criminal justice system content for over two hundred years to incarcerate juveniles for life with no hope of parole. To paraphrase the new testament, let he who is same at age fifty as he was at seventeen throw the first stone. 

There is more here, however. Sometimes when judges dissent they reach heights that they never were shooting for. Such is the dissent of Judge Emas:

Before condemning a juvenile to a sentence he can complete only upon his death, our society and our criminal justice system has a compelling interest in ensuring that the defendant have the opportunity to present, and the trial judge the discretion to consider, individual circumstances that might warrant some lesser sentence. In doing so, we provide an accurate and reliable sentencing process that gives substance to the Eighth Amendment's concept of proportionate punishment. By applying such a rule to all juvenile defendants, including those whose conviction and sentence are already final, we surely enhance society's confidence in a system that is not merely efficient or uniform, but is also fair, accurate and reliable.

The ideals of fairness, accuracy and reliability often defy measurement, but no one can reasonably question the significance of both actual fairness and society's perception of fairness in the effective administration of justice and the accuracy, reliability and integrity of the criminal sentencing process.

There is more to Emas's penultimate paragraphs than the retroactive application of Miller. There is a subtle judicial strike at the heart of minimum mandatory sentences. Re-read the portion we highlighted in red. 

In Miller, the United States joined the enlightened nations of the 20th century by refusing to incarcerate juveniles for life without chance of parole. Perhaps in the second decade of the 21st century Florida can return sentencing to judges and take life crushing minimum mandatory sentences out of the hands of prosecutors half the age of judges who sit powerless. 

Until then, Florida's citizens continue to live under the tyranny of justice meted out by prosecutors who have unfettered discretion to file charges that invoke minimum mandatories. Judges and defense attorneys remain relegated by the legislature to powerless bystanders, the fate of the defendant entirely out of their hands. One could imagine a such a situation in the Soviet gulag- a conveyor belt of humanity shipped off to Siberia, justice a distant, laughable concept, mocked by the all powerful state prosecutors. 

See you in court, derailing the conveyor belt just a bit. 

THE BLOG

No. Not this blog. 

The Broward Blog. 

Ana Gardiner. 

Bill Geilin. 

Mean, nasty comments, sexual innuendo, bar briefs, a recommendation for disbarment;  a total free for all. And throw in a whistle blower on a death penalty case, just for fun, in a county no defendant and no sane lawyer ever wants to find themselves in. 

Everything we strive not to be. Really. 

It's all here. 

See you in court. 

WHAT'S YOUR NCIC LIKE?

Did you ever wonder what your NCIC printout looks like? 
Now, courtesy of the Chief Of the City of South Miami Police Department, you can find out. 
The Miami New Times reported here that the good natured and ever helpful chief Orlando De Castro has been (illegally? es possible) running attorneys in NCIC. And not just any attorneys, but attorneys who apparently bug him. 

BOOK DEAL. 
Here they come, fresh from the Zimmerman acquittal, the book deals. Juror #37 now has a book deal. No word on whether her husband, who is a member of our beloved Florida Bar, helped her land the deal. More book deals, we are sure, to come.  Juror #37 talked to the Washington Post and said "most if not all" of the jurors believed it was Zimmerman on the phone calling for help. That right there probably won the case for Zimmerman. 

JUDICIAL (*cough cough*) CONFERENCE
If you're a county court practitioner, you have a quiet week, as most of your judges are labouring away at difficult judicial conference designed to iron out those wrinkles and return your favourite robed readers, renewed, refreshed, up on the law, and after many difficult hours of introspection, a better, more fair jurist. 
(Trying saying that with a straight face.)
Plus, there are those shrimp cocktails and mojitos. 
They never seem to hold these conferences in Hialeah, or Homestead, or at one  of those hotels right off of 441 near Dolphins stadium. Oh well, we're sure it's just an oversight. 

WHAT WE WOULD LIKE TO DISCUSS
We sent this on our twitter account (@justicebuilding)

Horace Rumpole ‏@JUSTICEBUILDING

14 Jul

If I was african-amercian, I would be more outraged over the mass jailing of AF/men, then this tragic case, as tragic as it is.

It's hot. 
Keep cool. 
See you in court. 

A VERDICT OF NOT GUILTY

Here's what we know about America 2013: people are still not judged by the content of their character, but by the color of their skin. Race is still the lens through which Americans view events, the criminal justice system, the police, the courts, lawyers and judges. Anger by African-Americans for race based inequalities may have dissipated a bit with the election of an African-American president and advancement of other minorities in other professions, but it still bubbles hotly just beneath the surface of public consciousness and drives behavior. 

In our small corner of the world, what we are concerned with is justice and fair trials. For us, the possible tragic outcome of this case are future jury verdicts that do not reflect the facts of the case. Future defendants-black, white, hispanic, whatever, could pay with their freedom over anger about the verdict in this case. 

We've seen in media (social and standard) calls for the State to appeal the verdict, and criticism of the prosecution for not forcing the defendant to testify and explain his behavior. Shocking ignorance of basic constitutional rights to be sure, but we as legal practitioners ignore the feelings of the general public at our own peril. The burden of proof beyond a reasonable doubt can be threatened by ignorant, populist politicians, and undermined by disgruntled jurors one case at a time. 

We've yet to reach a level of non race based thinking where a white man can kill a black man in self defense and not have the disgraceful tragedy of the killings of Medgar Evers be resurrected. 

Trayvon Martin was a boy. His life had barely begun. But Trayvon Martin was also  (in police parlance) a young black male, and his presence in neighborhood was deemed a threat to a man who had a gun. Neither Martin (who apparently beat up Zimmerman) nor Zimmerman who clearly escalated this encounter, are blameless. Trayvon Martin paid for the misjudgments that young men often make with his life. Zimmerman paid for the tragedies that guns often create with his life inexorably changed for the worst.

What's the tragedy here? Martin was scared by Zimmerman and responded by attacking him. Zimmerman was scared by Martin and responded by killing him.  The tragedy is that we need to stop being scared by each other. We need to stop shooting each other. We need to stop carrying guns wherever we go. We need to stop evaluating every encounter between two different colored people in 2013 based on their race, and most importantly, we need to stop screaming about throwing out cherished constitutional rights every time a case turns out differently than we wanted. White americans decried the justice system when OJ Simpson was acquitted and african-americans are now upset because Zimmerman was acquitted. 

These cases might well be the cost we pay so the thousand or so criminal trials that happen throughout our country every month- trials no one pays attention to or tweets about- resolve in a just and fair way. No defendant in the future should be convicted because Zimmerman was acquitted. That would be the real tragedy if that was the legacy of Trayvon Martin's tragic and untimely death. 

See you in court. 

VERDICT WATCH

NOT GUILTY. 
Now go to sleep. Peace out. 

PRE VERDICT FALLOUT: 

THE CAPTAIN REPORTS:

Breaking. SA Angela Corey fires her IT DIRECTOR .....


State Attorney Angela Corey has fired her information technology director after he testified in a George Zimmerman trial hearing that he was concerned the state did not turn over information to Zimmerman's defense team.

According to Jacksonville.com, a state attorney investigator delivered a note to Ben Kruidbos' home at 7:30 a.m. Friday that said he “can never again be trusted to step foot in this office.”

Kruidbos, 42, was on paid administrative leave since May 28, according to the report.

Kruidbos told his attorney in April that he was concerned assistant state attorney Bernie de la Rionda had not turned over his report to the defense, which included photos of a person holding a gun, a photo of a marijuana plant and a text message about a gun transaction.

The report said Kruidbos initially received a pay raise for his work in the case.

CAP OUT .....



Saturday Morning Question: Will the jury reach a verdict today? We think yes. We rarely see a six member jury deliberate beyond ten or twelve hours. Twelve member juries are a different kettle of fish. The possible permutations for jurors to align with each other (expressed as 12! or 12 factorial or 6! is 6x5x4x3x2x1) is the multiple of the numbers within the set.  6! yields 720 possible juror alliances (not juror decisions, which is set as "Guilty", "Not Guilty" or "no decision") while 12! = 479,001,600 possible juror alliances.   The mathematics of this is a bit difficult for this blog, as the number of possible permutations is merely the starting point. That number is actually reduced (trust us) since their possible positions are limited to three: G, NG, undecided. We've done the math and the outcome is below. 

Juror alliances are what form verdicts. Juror #6 and juror#5 agree on a set of facts of a case. They form an alliance which may or may not lead to a decision. The more jurors that form an alliance towards a particular verdict, the more likely that verdict occurs. This is expressed as "The Rumpole Verdict Probability Factor (RVPF)"
RVPF=100% when Juror alliance (JA)=6 (or 12 for 12 person juries).  

2JA= RVPF 25%; 3JA= RVPF 65%; 4JA=RVPF 90%; 
5JA=RVPF 98%; 6JA= RVPF 100%.
The tipping point is when half the jury agrees. When 3 of six jurors form a unified opinion then the chance that opinion becomes the final verdict is 65%: more then just half the jury (50%). When a fourth juror joins the alliance, 9 out of ten times their opinion becomes the final verdict, and when a fifth juror joins the alliance, the possibility of a hung jury goes down to 2% or less. 

So the key analysis is where are the six jurors when they start? Have any formed an alliance, and if so, how many? 

We shall see. 


Friday night update: Jurors concluded deliberations for the evening. Will begin tomorrow at 9am. They are sequestered. 

It really galls us to even acknowledge that some simple second degree murder case is worthy of all this media attention/hysteria. But then again, no one ever went broke underestimating the intelligence of the general public. 

So here is your verdict watch post. Comment all you want on the case, the attorneys, the closings, etc. Just please, no one ask - as we overheard some commentator do- why the prosecution didn't call the defendant to the stand to admit or deny it was his voice on the 911 tape. Please. We just can't take it. 

Rainy weekend. Try and enjoy it. 
See you in court on Monday.