GENERAL NORMAN COTA

Those who have a limited understanding of history will pause on June 6 and give lip service to the Normandy invasion, and then move on. Most likely they thought little of what occurred in France on June 6 as the years passed into the 1960's, 1970's, 80's 90's, and beyond. But the current daily intrusion by electronic media caught their eye this week, and they paused with  faint praise this Friday, without understanding the significance of the day or the men who fought on the Cotentin Peninsula or the sacrifices made. This faint praise includes this blog yesterday, for which we offer an apology. D-Day should never be mentioned in a line or two  as an afterthought on a post about some pedantic local politics. Neither should Antietam, Gettysburg, Meuse-Argonne, The Somme,  Iwo Jima, Guadalcanal, Midway, Bastogne, The Chosin Reservoir, or Khe Sanh, to name other important battles in American history. 

On D-Day + 75 years, we've decided to  examine General Norman Cota. Cota was 50 years old on D-Day. He landed on Omaha Beach at H hour plus one. As a One Star General he was one of the highest ranking officers to land on the beach on D- Day. Cota landed with the 29th Division, which was led by a cadre of West Point Cadets and had a nickname of "The Blue and Grey" division. Prior to the landings, Cota was heavily involved in the planning, and highly critical of the invasion's plan. Most presciently, Cota did not believe the bombing and naval shelling would destroy the German fortifications and that when the 1st and 29th divisions landed at Omaha Beach they would face heavy opposition. 

Cota was correct. While the 4th Division which landed at Utah Beach suffered less  than 200 casulaties during the landings, V Corps (the 29th Division and the 1st Division nicknamed The Big Red One )  suffered close to 5,000 casulaties at Omaha Beach, giving rise to the nickname "Bloody Omaha."

The First wave at Omaha floundered completely. Some units lost over 90% of their men. Cota landed in the second wave around 7:30 am, with the 116 Regiment of the 29th Division at a portion of the Beach known as Dog White.  At Dog Green, to the right of Dog White, the Second Rangers batallion lost two thirds of their men during the landings. The earlier support of tanks and naval bombardment had failed to materialize and the Dog Green landing  was a disatser.  

Meanwhile, at Dog White Cota and his regiment had also landed without much support.  Lt. Colonel Max Ferguson Schneider, the commander ot the Fifth Rangers batallion  in a landing craft behind Cota recognized the sitiuation at Dog Green and ordered his boats diverted to Dog White. 

There is a small sea-wall separating the beach from the road at Dog White and Dog Green. Directly across the road is a small bluff, rising perhaps two hundred to three hundred feet. At the base and  top of the bluff, the Germans were dug in and well armed. To the right, at one of the exits off the beach on a road leading in land, was a German bunker (see below) that had a clear view of Omaha Beach and had survived the bombings and was laying down a deadly stream of fire. 

Cota and the members of the 116 of the 29th huddled under the beach wall. Wave after wave of men landing on the beach behind them  were being cut down and killed. The tide was now beginning to come in , and those men who were wounded at the water's edge began to drown. It was almost 8 am, June 6, 1944, and something needed to be done. 

Cota called for Bangalore torpedoes to attack the fortifications at the base of the bluffs. Slowly the equipment came forward and holes were blown in the barbed wire and some of the defenses at the base of the bluffs were neutralized. 

Lt. Colonel Max Schneider bumped into General Cota. Cota asked Schneider what outfit he was leading. "5th Rangers" came the reply. 

Now came two quotes that Cota is remembered for. But beyond the words, it is the action of this one American that turned the tide at Omaha Beach. 

When Schneider told Cota he was was with the Rangers, Cota stood up and pointed to the holes the Bangalores had blown open and shouted "Rangers lead the way!". Schneider's Rangers charged though the holes and up the bluffs and engaged and defeated the German defenders.
Rangers Lead The Way!  has gone down in history and now is the motto of the Rangers. 

At some point Cota began walking along the beach wall, ignoring the bullets, and rousing his men huddled behind the wall- shouting the second phrase he is remembered for: "Gentlemen, we're being killed on the beaches. Lets get up there and be killed in-land." 
Slowly Cota led his men off the beaches and up the bluffs. Once the Germans at the top were cleaned out, the Rangers headed towards Point Du Hoc to meet up with the battalion that was scaling what later became the famous cliffs. Cota led the 29th in land to achieve the objectives of the 29th division. 

Your faithful blogger has stood several times at the precise spot on Dog White where General Cota and Lt. Colonel Max Schneider met. There are peaceful beach homes at the base of the bluffs  that belie the carnage of the beach on June 6, 1944. Rumpole has walked up (mostly crawled) the steep bluffs behind the sea wall and hiked from Dog White all the way to Point Du Hoc. Every American should visit Normandy once in her or his life. 

For his actions on Omaha Beach  General Norman "Dutch" Cota received the Distinguished Service Cross for bravery under fire (the only higher award is the Congressional Medal Of Honor). Lt. Colonel Max Schneider was also awarded the DSC for his actions on Omaha Beach on June 6, 1944. 

Cota was later given command of the 28th Division and was part of the liberation of Paris, and then took part in the invasion and liberation of Belgium. He was awarded the Croix de guerre with Palm by France, the Croix de guerre with Palm  by Belgium. The Croix de Guerre is awarded to an individual or unit that distinguishes themselves with heroism under fire. Field Marshall Montgomery pinned the British Distiguished Service Order on Cota. The DSO is awarded only to military officers who distinguish themselves under fire in combat. 

Cota died on October 4, 1971 and is buried in the West Point Cemetary. 

Gen. Dutch Cota- A true American Hero.  The Beast Of Omaha:  One of the defending Germans at Omaha Beach  was MG42 gunner Lance Corporal Heinrich Severloh who was in a well emplaced bunker; "Widerstandsnest 62" with good fields of fire. Severloh was instructed to target the US troops while they were still wading towards the beach. That Bunker still stands today and you can visit it. Severloh engaged the landing Americans for 9 hours, firing 12,000 rounds before his ammunition ran out and according to some historical analysts, Severloh may have been responsible for up to 3,000 of the casualties taken by the American forces. Severloh was nicknamed the "Beast of Omaha" by US survivors of the landing

D-DAY, TWO NEW COUNTY COURT JUDGES, & BAR PRES UNDER INVESTIGATION .....

THE CAPTAIN REPORTS:

"It is foolish and wrong to mourn the men who died. Rather we should thank God that such men lived." — General George S. Patton, Jr.

75 YEARS AGO TODAY, D-DAY, June 6, 1944. It was the largest amphibious invasion in the history of warfare when more than 150,000 brave young soldiers stormed the beaches of Normandy, France in a bold strategy to push the Nazis out of Western Europe and turn the tide of the war for good. A total of 4,414 Allied soldiers gave the ultimate sacrifice that one day.

Today we honor them.

YOUR TWO NEWEST COUNTY COURT JUDGES ARE .......

STEPHANIE SILVER, age 42. Ms. Silver has been a member of The Florida Bar for 18 years. She is currently the County Court Division Chief at the Miami Dade State Attorney’s Office. She has worked her entire legal career as an ASA. She replaces Judge Michelle Barakat who was recently elevated to the Circuit Court bench.

ZACHARY JAMES, age 39. Mr. James has been a member of The Florida Bar for 14 years. He is currently a partner at Meland, Russin, and Budwick, PA where he concentrates his practice as a business litigator. He has been at that firm for the past eight years. He formerly served as an AUSA in the Southern District of California and before that as a state prosecutor and a trial attorney for the Department of Homeland Security. He replaces Judge Tanya Brinkley who is also now on the Circuit Court bench. James is also a marathon runner and triathlon competitor.

Governor DeSantis made three other judicial appointments today throughout the State. Tesha Ballou (former prosecutor) to the Circuit Court 18^th Judicial Circuit; Anthony Salem (former prosecutor) to the Duval County Court; and Charles Young (former prosecutor) to the Escambia County Court. DeSantis goes five for five in appointing former prosecuting attorneys to the bench!!!

NORTH OF THE BROWEIRD BORDER .......

FLORIDA BAR PRESIDENT UNDER INVESTIGATION

Michelle Suskauer was sworn in as President of The Florida Bar in June of 2018. Her term ends this month when she turns over the gavel at the Bar’s annual convention in Boca Raton. It looks like Suskauer is going to need the extra time as she now has to defend herself against a Bar complaint filed by a Federal Court Judge.

Judge James Cohn filed the complaint after Suskauer, a criminal defense attorney in West Palm Beach, allegedly permitted a disbarred attorney to represent one of her clients.

The Facts (from the Palm Beach Post).
 
+ U.S. District Judge James Cohn told Suskauer this week that he would contact the Bar after one of her clients told him that disbarred lawyer John Garcia met with him, sat at the defense table when he took a plea deal and handled all the details of his wire fraud case. "Certainly his role was more than that of a paralegal," Cohn said after looking at dozens of emails Garcia exchanged with accused fraudster Anthony D’Amico. "And he had direct client contact, which is prohibited by the Florida Bar. And it is a serious allegation." "Quite honestly," Cohn continued, "the Florida Bar needs to take a look at this, and I plan to refer it to the Florida Bar."
 

+ D’Amico, the client, pled guilty to five counts of wire fraud in February.


+ Garcia, was disbarred for five years in 2007 after he pleaded guilty to federal charges, admitting he hid a client’s drug money and lied to federal agents about it. He was sentenced to 18 months in prison. In 2014, he was permanently disbarred after he was accused of practicing law without a license.

+ D’Amico explained that he hired Suskauer and paid her a significant amount of money. He said that Suskauer urged him to also hire Garcia because he was a "federal court specialist". So he did and he paid Garcia $10,000.

+ At the February change of plea, Garcia sat at the defense table. Suskauer was not in court; she instead sent an associate.

+ Suskauer says: "Garcia brings a unique perspective to clients. He not only knows the law, but can advise people about what it’s like to live behind prison walls." "We used him as an expert so that our clients, if they’re sentenced as such, will be able to be better acclimated to the procedure." "Aside from offering prison counseling, he worked only as a paralegal, she said."

+ Judge Cohn said, Garcia — with Suskauer’s help — may have stepped over some important lines. He asked Suskauer about various Bar rules that attorneys must follow when dealing with disbarred lawyers. Suskauer said she wasn’t familiar with the rules but was convinced that neither she nor Garcia violated them. "Well, perhaps you should acquaint yourself with Florida Bar Rule of Professional Conduct 3-6.1," Cohn said. "I think you may come away with a different opinion."

The Rule:

(a) Authorization and Application. Except as limited in this rule, persons or entities providing legal services may employ suspended lawyers and former lawyers who have been disbarred or whose disciplinary resignations or disciplinary revocations have been granted by the Florida Supreme Court [for purposes of this rule such lawyers and former lawyers are referred to as "individual(s) subject to this rule"] to perform those services that may ethically be performed by nonlawyers employed by authorized business entities.

An individual subject to this rule is considered employed by an entity providing legal services if the individual is a salaried or hourly employee, volunteer worker, or an independent contractor providing services to the entity.

(d) Prohibited Conduct.

(1) Direct Client Contact. Individuals subject to this rule must not have direct contact with any client. Direct client contact does not include the participation of the individual as an observer in any meeting, hearing, or interaction between a supervising lawyer and a client.

Our own Brian Tannebaum has been retained to represent Ms. Suskauer in the Bar proceedings.

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

mike satz TO RETIRE

The news broke this week. The state attorney of Broweird County, responsible for so many legal tragedies over the years, is retiring. His office and his legacy are the legions of prosecutors who told defense attorneys that their office policy was "to let a jury decide" in cases where the accused was most likely innocent.




In our humble opinion, there is nothing to celebrate in the career of a prosecutor who abandoned the highest calling of a prosecutor- to seek justice. All we can bring ourselves to write is "good riddance".

We cannot think of a good headline. So perhaps our readers can suggest a headline commensurate with the retirement of a man whose legacy is a blight on the criminal justice system.
(But tell us how you really feel Rumpole).



Here are some suggestions we abandoned.
"Ding dong, the witch is dead."
"The Revenge of the Jedi."

ET PHONE HOME- JUST NOT FROM FEDERAL COURT

With apologies to Dr Seuss...

You can take your phone onto a boat
You can take your phone onto a plane
You can take your phone onto a train

You can take your phone in your car
You can take your phone near or far

But unless you're a lawyer
You cannot take your phone into federal court 

You can take your phone into State Court 
You can take your phone onto centre court 
You can take your phone up high on Mt. Everest
You can take your phone and SCUBA down low 

But unless you're a lawyer
You cannot take your phone into federal court. 

Why? 

Are they afraid people will order Uber Eats? 
Or phone a friend for a lifeline? 

Perhaps they will access the web and do some legal research;
Query: Can a judge consider conduct for which a defendant has been acquitted for the purposes of sentencing? 
YES!!!!

It's time for the Feds to join the digital revolution and lighten up Francis*  and let people take their cell phones into the courthouse. It does not mean they will actually (gasp) take a picture in federal court- which we all know is the equivalent of throwing a bucket of water on the Wicked Witch. 

"I'll get you my pretty. You and that little cell-phone of yours."

Thoughts? But whatever you do, if you're not a lawyer, don't use your phone to write a comment if you're in "never-never" land. OZ. 

* Stripes References 

** A previous version of this post had typos rarely seen, giving you, the long-time and careful readers of the blog a rare insight into the creative process of Rumpole and how the sausage is made. 
If you somehow saved a version of that mistake, much like the Inverted Jenny ***, you may have something valuable. 


*** A rare philatical****reference. 

**** A philatelist collects stamps. 



*Stripes Reference 

LOUIS JEPEWAY (2)

Louis Jepeway was so much more than we realized, and thus we break blog precedent by running a second obituary. Our information has been obtained from the excellent obituary in the Miami Herald here.

Here are  some facts we learned from the Herald: 

Louis Jepeway and his father convinced Bennett Brummer to run for Public Defender in 1976. The rest, as they say, is history. “He was a mensch,” Brummer, now retired, said of Jepeway Jr. “He was a charming iconoclast and non-conformist"

Louis Jepeway wrote an article for the Miami News about defending a client in  capital case. He ended the column thusly: 

“The attorney who attempts to prevent the state from murdering a client seeks to cleanse our society and to affirm our highest value, the sanctity of human life. He does not know if he will be successful. But the effort itself confers honor, dignity, and meaning upon an unreceptive society. An attorney has no nobler calling.”

Louis Jepeway was a philathropist: Jepeway’s financial support of progressive causes, including legal services for the poor, the Boys Club of Miami, and the ACLU. “He was always very generous, but he didn’t want anybody to know,”

Louis Jepeway received an award from the ACLU for his legal work: 
Jepeway Jr. was honored with awards from the ACLU Miami chapter for his advocacy of civil liberties and civil rights, the Theodore R. Gibson Memorial Fund for “his efforts to foster a oneness among Miami-Dade’s multi-ethnic communities,” and Legal Services of Greater Miami for his contributions to “equal justice under law.”

Read more here: https://www.miamiherald.com/news/local/obituaries/article230900194.html#storylink=cpy

We didn't know Lou as well as others. What a wonderful and meaningful life he lived. Rest in peace. 

Read more here: https://www.miamiherald.com/news/local/obituaries/article230900194.html#storylink=cpy

Read more here: https://www.miamiherald.com/news/local/obituaries/article230900194.html#storylink=cpy

Read more here: https://www.miamiherald.com/news/local/obituaries/article230900194.html#storylink=cpy

SIT IN

Yale's Skull and Bones. The Trilateral Commission. The Free Masons. BPOE. 
The names of these secret societies are whispered, not spoken. Conspiracy theories abound. 
And now in Miami, the  doors to another secret society are being pried (slightly) open. 

Where else can you go to meet charter members of the Merrick Garland fan club? Where can you see Mr. Markus expound upon Madison's Federalist Papers 10 and 14 or hear earnest discussions about the committee notes to the federal sentencing guidelines? 
Wanna hear a debate about Judge Hirsch's use of Guy de Maupassant in a ruling on a motion in limine? 

There's only one place where all these wonderous things occur, and now it's open to you: John and Jane Q Public, Esq! We speak of course of the monthly meeting of the Miami Chapter of the FACDL (motto: Dues, dues, dues!). 

On Wed, May 29, 2019, 6:10 PM Michelle E <mestlund@estlundlaw.com> wrote:

Dear membership,

FACDL-Miami meetings are always open to our general membership, not just the Board of Directors. Below is the schedule of meetings and locations for the upcoming year.

If you have any issues to be raised at a meeting, please notify me a week in advance so I can include it in the agenda.

June 19, 2019 - Federal Public Defender's Office ("FPD"), 50 West Flagler Street, Suite 1700, Miami, Florida 33130

August 21, 2019- Law Office of Wahid Vizcaino, 2103 Coral Way Ste. 304, Miami, FL 33145

September 18, 2019- FPD

October 16, 2019- Office of Wahid Vizcaino

November 20, 2019- FPD

December 18,2019- Office of Wahid Vizcaino (meeting may be replaced with state PDO lunch and toy drive) (special showing of Gideon's Trumpet, staring Henry Fonda)*

January 15, 2020- FPD

February 19, 2020- Office of Wahid Vizcaino

March 18, 2020- FPD

April 15, 2020- Office of Wahid Vizcaino

Because altruism is our middle name, and because we live to serve, here are some items we believe should be placed on the agenda: 

Item: The elevators in the REGJB stink;
Item: Lattes while waiting in line at the attorneys window on 9- why can't they have caramel to drizzle on top?
Item: Placing court files on line for downloading- can anything be done before the Jenna Bush/Chelsea Clinton administration in 2028?
Item: How soon until wifi/2g service in the REGJB?


* Not really, but it's a cool idea. 

LOUIS JEPEWAY HAS PASSED AWAY

He enjoyed a good cigar. He enjoyed a good courtroom tussle. He practiced law in this community before many of us were born. He was loyal to his clients and devoted to achieving the best outcome for them. He was a bit of a raconteur when you got to know him. And he had, as Edith Georgi points out below, "a generous heart." 
Our friend and colleague Louis Jepeway passed away Sunday morning of a heart attack. 

Dear Friends and Colleagues,

It is with profound sadness that I share with you that we lost another hero today. Louis Jepeway died this morning of a heart attack. A person known for his generous heart, his fearless spirit in court, and his insatiable quest for knowledge, he will be missed by all who knew him.

Please share your thoughts and memories so that they can be delivered to his family and loved ones....

And perform acts of generosity in his name--that's what Louis did constantly, and usually anonymously.

Arrangements will be announced soon.

Sadly,

Edith

HELP WANTED INQUIRE WITHIN

Perhaps it's the long hours 10-2 work hours and low pay. Perhaps it's the chambers that resembled what a remodeled Greyhound Bus Assistant Manager's office looked like in 1979. Perhaps it's that the job no longer gets you freebies and or even a seat in the back dining room at Joes unless you're on the 3rd or the federal bench. Maybe it's the incessant sniping from obnoxious and anonymous  bloggers.

In any event, no one wants to be a circuit judge. There are three vacancies on the Miami-Dade circuit bench and the JNC (motto: "read Ayn Rand and join the federalist society before you even THINK of applying")  for THE SECOND TIME has extended the deadline for applicants. 

FROM THE JNC PRESS RELEASE:    

MIAMI – In order to broaden the applicant pool, the Eleventh Circuit Judicial Nominating
Commission hereby extends the application period for applications to fill the vacancies created
by the elevation of Judges Monica Gordo and Rodolfo Ruiz, and the resignation of Judge Maria
Sampedro-Iglesia. The Commission requests that interested candidates submit an application for
consideration. Applicants must meet the qualifications for circuit court judges described in
Article V, Section 8 of the Florida Constitution. Applicants must submit three copies (3) of their
application by 5:00 pm on Friday, May 31, 20191 as follows:
(1): The original unredacted paper application shall be delivered to:
Breckenridge Dewey
Dewey Cheetum & Howe
200 S. Biscayne Blvd. 39th Floor
Miami, FL 33131-2399S

The only people who are applying are county judges who resemble Horshack from Welcome Back Kotter: 





Our take (which is what you tune in for) is that we have a Governor driven by ideology- but it's an ideology neither he nor his legal counsel understand. They want members of the Federalist Society to be judges. But what they do not understand is that the real principles of the federalist society (not what is discussed in the local Miami chapter where they sit around and say that if they were a judge they would just call balls and strikes and would not legislate from the bench) are based on an understanding of the epistemology of the political philosophy of laissez faire capitalism. 

They think a conservative judge defers to a legislature that enacts laws based on conservative Christianity. They don't understand that the founders of the federalist society embraced the philosophical principles against altruist-collectivism- something that is embraced full bore by Trump and his "Trump-Judges" - a more miserable group of collectivists we have rarely seen. 

So maybe potential candidates are disheartened about being forced to abandon their principles. Maybe possible judicial candidates just find it abhorrent to be told how to be a judge and a lawyer by the governor's legal minions who have never tried a case. 

Maybe it's just us.  "Avoid doing something that gets you on the blog" is something we have heard all new judges are advised to embrace. (Why doesn't Judge Soto like us? 😟  ).

In any event.... the Governor has hung out the help wanted sign. 
Run. 

MEMORIAL DAY 2019

Summer is fast upon as. Florida's short spring gets shorter all the time- not that there's any evidence of global warming.  Soon it will be the Fourth Of July, and then the All-star game; pre-season football; the dog-days of August, and then the fall...the blessed fall when temperatures dip a degree or two in Miami. 

For now we repair to our lair high in the Sierra Nevada Mountains. 

Query: Are you staying in Miami or starting a summer vacation? 

Talbot "Sandy" D'Alemberte passed away this week at the age of 85. The accolades that have been written- that he was a giant in Florida's legal community and that he was one of the last true southern gentlemen-lawyers, are all true, and yet the kind words do not scratch the surface of Sandy D'Alemberte's life. Suffice to say that Sandy D'Alemberte was of a different time- a time when being a lawyer was an honorable profession and the law was a calling for people who wanted to change the world for the better. Sandy D'Alemberte was a lawyer's lawyer. He was one of the outstanding Floridian's of the last century. He was a man who made a difference and he will be missed. 

WHO'S THE FAIREST OF THEM ALL

Mirror Mirror on the wall...

If you are observant and have been snooping around the courthouses the last few days then you've noticed something different. Things are quiet. Going smoothly.  Why? 

The Judges of the State of Florida are in town for ….Supreme Court mandated.... 

Gimme a D....D....

DIVERSITY TRAINING! 

Yes the D word. Diversity. Judges have to have training within three years of becoming special human beings.  But wait you ask- "If a lawyer becomes a judge, aren't they already fair and sensitive to diversity issues?" 

Surely you jest. 

What occurred at the D training? We don't know. We couldn't get a judge to talk to us on the record. Actually, we couldn't get a judge to talk to us off the record. A few loose-lipped bailiffs and JAs spilled the beans when we asked where everyone was. 

Here's how we envision a lecture...

Biodiversity refers to the variety and variability of life on Earth. Biodiversity is typically a measure of variation at the genetic, species, and ecosystem level. Terrestrial biodiversity is usually greater near the equator, which is the result of the warm climate and high primary productivity. 

Oh wait. This is about race and gender....

This is George Stinney. On June 14, 1944 he was executed by electrocution after he was wrongfully convicted of the murder of two white girls. 
The trial lasted one day- including jury selection. 
The jury deliberated ten minutes. 
There was no transcript of the trial. 
There was no appeal. 
George Stinney was executed 83 days after he was convicted. 
When he was executed he was five feet tall and weighed 90 pounds. He was too small for the electric chair so he was made to sit on a bible in the chair. Good Christians they who executed the fourteen year old boy. 

Mirror mirror on the wall, who's the fairest of them all? 
Not the American Justice system, often touted as the best in the world. 

You want to talk about race and diversity in the criminal justice system? 

Tell it to George Stinney. 

FED CONFUSION

You can't tell the players without a scorecard. 
You can't order without a menu. 
And it's hard to figure out which Magistrate is doing what and  when, when  you go on the SDFLA website and- after much searching- find the duty roster:

First of all when you go on to the Southern District Web site (Motto "We know who you are") there are nine tabs.  Choices. Choices. Choices. Which tab is more likely to yield the duty assignments: "Court Info"; "Attorney Info"; "Judges Info?"? 
Judge's info is the correct choice, but not an intuitive one. 
Once there and you click, you get the above. 

Matthewman? We'll take him...but although it doesn't say it, he's 70 miles away in asbestos-ville  West Palm Beach. 

Reid...Maynard...Valle...they're all on duty. Who's holding court at 10 and 2? And BTW where is their courtroom? No info on this tab. To find that, it's another click-fest. 

Give the feds their due- their electronic filing system is 100X better than the State of Florida's system. 

But figuring out where to go?  It's like trying to find WMD's in Iraq circa 2001-2007. You know they're there, somewhere...but where? 

With apologies to our favourite federal blogger as this is his milieu, but he's not anonymous and we are, and he can't piss off the powers that be, and doing that is our milk and honey. 

Memorial Day coming up. Otherwise known as Trump Pardons his favourite war-criminals day. 

SPY VS SPY

Well this is a new one on us. US Navy prosecutors in the court martial of Navy Seal Edward Gallagher have attempted to spy on the defense by sending defense counsel an email with spying software imbedded in the email.  Navy prosecutors did this with the consent of the Judge assigned to the case. 

Count us as aghast. 
But maybe not surprised. 


From the NY Times :

The court-martial of a highly decorated Navy SEAL platoon leader on war crimes charges has been thrown into turmoil by, of all things, a harmless-looking image of a bald eagle perched on the scales of justice.

The bit of digital artwork, embedded in an email message, contained hidden software that could track if anyone read or forwarded the email, and may have also been able to allow access to all communications and files on the recipients’ computers, defense lawyers argue in court filings.

The email was sent last week to defense lawyers representing Special Operations Chief Edward Gallagher by the lead Navy prosecutor in the murder case against the chief, apparently with the judge’s approval. The tracking software was also included in emails sent to lawyers for the chief’s commanding officer — Lt. Jacob Portier, who is charged in a related case — and to a journalist for Navy Times covering both cases.

Maybe the Navy should have consulted with the  US Attorney's Office for the Southern District of Florida.  They have been known to spy on the defense (or at least clumsily try) in at least two recent cases. In one case the feds sent a snitch to Mr. Markus who solicited the defense to commit crimes (which they naturally refused to do) and in a second case the feds flipped a co-defendant who had signed a joint-defense agreement and then debriefed the defendant about what was said at the joint-defense meetings. 

Coming next: vengeful prosecutors bug the jury room to determine  which jurors are violating their oath by presuming the defendant innocent. 

HARVARD CAVES IN

UPDATE: David's federal blog has an excerpt from Roy Black's commencement address to U of M law school. It's worth a read here and fits within the context of this post. 

The motto of FACDL (other than the "dues! dues! dues!) is "Liberty's Last Champion."

Defense attorneys defend the defenseless. 

Our tradition is rooted in John Adams, who as a young attorney in Boston defended a group of British soldiers charged in the Boston Massacre with killing Boston citizens. Adams defense of the British soldiers was brilliant and it placed Adams' future (including his plans to run for office) in jeopardy. And yet, in the face of public condemnation and personal ruin, Adams vigorously defended his clients, winning most of the cases and setting the tradition for criminal defense lawyers in the United States.  There is a John Adams award given annually to a criminal defense attorney who defends a client-usually a high-publicity case where the client engenders little sympathy. 

Enter Harvard Law School dean Ronald Sullivan,  who several months ago undertook the  defense of the unpopular Harvey Weinstein. To say Weinstein has become a pariah in this country is an understatement. Weinstein has the wrong charges (sexual assault) the wrong accusations (using a position of power over women to sexually assault them) at the wrong time (#metoo). 

It's a case that cries out for Rumpole. 

But Weinstein did not hire your favourite blogger. Instead  Weinstein settled for Harvard Law School Dean Ronald Sullivan, who we grudingly admit, was not a bad second choice. 

Except the students at Harvard erupted. "How could defend such a person?" was the question repeatedly asked among the spoiled denizens of Harvard Square. Protests ensued. Students didn't want a Law School dean who would stoop to represent such a despicable character as Harvey Weinstein. 

Yesterday Harvard caved, removing Ronald Sullivan as a dean of the law school in response to the criticism of his defense of Weinstein. 

Let us repeat that slowly- Ronald Sullivan was removed as a dean of the law school because the people at Harvard did not approve of his client. 

The spoiled Harvard brats, who know nothing, live in an Ivory Tower, and pay lip service to a constitutional system of justice where everyone is entitled to a defense and they are presumed innocent until proven guilty...unless they are charged with using a position of power to assault and abuse women. Then the students cup their hands over their open mouths in horror: "How could you defend such a person?"

So here is the system of justice according to Harvard- everyone is entitled to the presumption of innocence and counsel of their choice so long as the students of Har vahard, using their Brahmin sense of right and wrong, agree. 

Put another way, the people at Harvard make us sick.  They have no idea about the real world and their sense of outrage has no place at a law school. If they find  Harvey Weinstein and allegations against him repulsive, then they need to find another area of study. Go to med school. Engineering school. Architeture- go design battered women shelters and provide beds for abused children and their mothers. It's the lord's work and a very worthy cause.  But when it comes to criminal defense, stay out of our work. Leave it to the professionals. You don't want people who are accused of crimes you find offensive to be presumed innocent and have the right to the counsel of their choice. 

So be it.

Go jump in the Charles River and clean it and make yourself feel good about being a doo-gooder. 

Idiots.  (Sorry DOM,  no offense intended). 

JUST FOR THE RECORD

How about a hand for El Capitan? A good and informative post last week, providing necessary information for the modern criminal practitioner.  

We are thinking of cancelling the Captain's blog status. 

On to legal and non-legal lexicography.

Here are some words and phrases that we can either do without, or which aren't being used enough. 

10. Allocution. In many jurisdictions, the defendant allocates. It is a formal statement a defendant makes in which s/he accepts responsibility and offers mitigation before sentencing. In over thirty years, we have never heard the term used in any federal or state court in Florida. 

9.  BFF.  What does this mean? 

8. Meme. See #9. 

7.  Guidelines (state court). What a misleading term this has turned into. Under the original guidelines a crime was given a low end and a high end. Courts had discretion to go lower or higher. Then some yahoo legislator heard about a judge giving someone a day less than the guidelines required, and the law was amended and amended and amended until "guidelines" became a code word for "maximum sentence." Guidelines supersede statutory maximums. Guidelines remove judicial discretion. Guidelines, like the orders from generals in totalitarian states "must be obeyed" regardless of the human consequences. 
Here's an idea: let's enact the "truth in justice" act and require terms to mean what they say. "Guidelines" would be changed to "absolute maximum sentence to be given in all cases with removal from office of any judicial officer who does otherwise." In Florida's Orwellian justice-system-speak we can call this the "Fair-Sentence-Calculation." 
Judge: "Ms. Prosecutor, what's the Fair-Sentence-Calculation?"
ASA: Judge, the FSC for a first time attempted burglary of a tricycle is ….hmmm....add the tire enhancement, wheel enhancement, quality of life enhancement, bell on handlebars enhancement, minus one day for first offense under the First Offenders Prison Reduction Act (FOPRA- "all first offenders shall have their sentence reduced by one day in recognition that this is their first offense") ....it's seventeen years, seven months, 29 days  judge. But this offer is open only at arraignment. Under Florida's "Don't Waste My Time Act" defendants who are guilty and do not accept a reasonable offer at arraignment are subject to a multiplier for every thing they do to delay the case, like taking depos or filing motions. For a third degree felony there is a  .21 multiplier for taking depositions and a .45 multiplier for filing frivolous motions like motions to suppress or dismiss."

6. Craft Beer. Please. Spare us. Pop the tab on a cold Bud and STFU. 

5. What, pray tell, is a "Kardashian" and why does/do they/it/whatever matter so much? 

4. A "continuance"  in Miami, is an adjournment in New York. Pre-trial diversion in NYC is an "ACD" (adjourned in contemplation of dismissal). Everyone in Miami is from New York. Everyone in NYC wants to move to Miami. Why can't we all get along and learn to speak the same language? 

3.  Constitutional Crisis.  The last time a Constitutional Crisis was in vogue was the Saturday Night Massacre when President Nixon couldn't find anyone at the DOJ to fire special prosecutor Archibald Cox until solicitor general Robert Bork Bork'd Cox. Now all the cable new outlets are babbling about a constitutional crisis. We don't have a constitutional crisis. The Constitution is working just fine. We have a Presidential Crisis. A narcissistic idiot is president and the office is in crisis. If it walks like a duck; and quacks like a duck; and it's not a platypus, then it's a presidential crisis. 

2. Dude.  From the 1870's to the 1950's "Dude" denoted a well coiffured dandy. It was also a word western "country folk" used to identify a conspicuous "city slicker"  visiting rural America.  
When did a word used primarily in Montana and Oklahoma become a popular and accepted form of address? We have heard lawyers "dude" each other in the hallways. We have heard witnesses describe the "dude that robbed the store". 
Dude, Stop using Dude. We formally will honor with recognition and favor any Judge who prohibits the use of the term "Dude" in their court. 

1. "Just for the record"   How many times in any given court proceeding do you hear a lawyer say "just for the record judge." 
The term is meaningless. As one of our favourite Judges, The Honorable Federico Moreno has been given to say in the past, "everything is for the record". Everything said in open court is on the record. Saying something is for the record, while you are on the record, is meaningless and redundant.  It's a waste of time. It's legal pomposity, uttered by hapless litigators who just want to hear themselves speak for no other reason than hearing themselves speak. 

So stop it. For the record, we are demanding that lawyers stop saying "for the record" while in court, on the record. 

CALEB CENTER AND COURTHOUSE OPEN

On February 6, 1972 Joseph Caleb,  34, a lawyer and head of the International Union of North American Laborers was found behind his apartment building dead, his body riddled with half a dozen gunshot wounds. The NY Times article reporting the murder is here. 
The Union that Mr. Caleb headed was the second largest Union local in the US and its membership was 85% black. 

Joseph Caleb headed the Union local from 1963 until his murder. During the turbulent times of the 1960's black laborers were-not surprisingly- paid significantly less than their white counterparts. Raised by his grandparents who were Alabama share-croppers- Caleb fought for the right to equal pay for his Union members. During his leadership, according to this Miami Herald Article written by Mr. Calen's son in 2014, pay for black workers in the union rose from $1.15/hour to $5.30/hour plus benefits. 

As Mr. Caleb's son also writes, his father was more than a union leader. He was a civil rights activist, a philanthropist who supported more than 16 charities, the chairman of the Model City Program - a President Johnson era program to bring a community center to Miami- the one that is now named for Mr. Caleb. Mr. Caleb brought the free-school-lunch program for inner city youth to Miami, and a youth summer job program as well. 

The Caleb Center is located at 5400 NW 22nd Avenue. The Judges assigned to the re-opening of the Courthouse are Gordon Murray (civil) and Jacqueline Woodward (criminal). 

Many of us went to law school to make the world a better place. Few of us actually do so. Joseph Caleb did and the courthouse and community center are a fitting tribute to the man and his life. 

FLORIDA LEGISLATURE - 2019 - CRIMINAL JUSTICE REFORM

THE CAPTAIN REPORTS:

SINE DIE ......

And with that, the Florida Legislature wraps up another session in Tallahassee. According to the Tampa Bay Times, the Legislature passed a 296-page criminal justice reform package bill last Friday, the last full day of the session.

There were many legislators that were less than satisfied with the final product. In last minute behind the doors meetings, several big-ticket reform pieces were taken out of the bill at the behest of the House.

Some of the highlights of changes in the law that are contained in House Bill 7125 include:

+ Making it easier for felons to get professional licenses

+ Allowing state attorneys to decide whether juvenile cases should be transferred to adult court. (Currently, that happens automatically if the crime is severe or the child has certain priors convictions).

+ Raising the "threshold" dollar amount at which theft charges go from a misdemeanor to a felony, from $300 to $750.

+ Eliminating or reducing driver’s license suspensions as a criminal penalty.

+ Creates a task force to reevaluate Florida’s entire criminal punishment code, and whether the set punishments fit the crime.

What didn’t make the cut in the final bill:

• Allowing judges discretion over sentences for certain drug crimes that currently have required amounts of time that defendants must serve, called "mandatory minimum" sentences.

• Permitting prison inmates convicted of nonviolent felonies to be released after serving a minimum 65 percent of their sentence if they have good behavior and participate in educational and rehabilitative programs (current law is 85 percent).

• Retroactive re-sentencing for people who were convicted of aggravated assault back when the state’s punishment for that crime was harsher than it is now.

Interesting side note: "As part of the analysis conducted to evaluate the impact of the original bill, state analysts crunched the numbers as to what would happen if inmates were allowed to be released earlier. The answer was eye-popping: By 2024, $860 million would be saved and about 9,000 additional prisoners would be released."

HERE IS A HIGHLIGHT OF JUST SOME OF THE CHANGES:

322.055, F.S.; reducing the length of driver license revocation for possession or sale of, trafficking in, or conspiracy to possess, sell, or traffic in a controlled substance; deleting provisions authorizing a driver to petition the Department of Highway Safety and Motor Vehicles for restoration of his or her driving privilege;

322.056, F.S.; reducing the period for revocation or suspension of, or delay of eligibility for, driver licenses or driving privileges for certain persons found guilty of certain drug offenses; deleting requirements relating to the revocation or suspension of, or delay of eligibility for, driver licenses or driving privileges for certain persons found guilty of certain alcohol or tobacco offenses; deleting provisions authorizing a driver to petition the Department of Highway Safety and Motor Vehicles for restoration of his or her driving privilege;

322.057, F.S., repealed; relating to discretionary revocation or suspension of a driver license for certain persons who provide alcohol to persons under a specified age

322.75, F.S.; creating a new statute; requiring each clerk of court to establish a Driver License Reinstatement Days program for reinstating suspended driver licenses in certain circumstances; providing duties of the clerks of the circuit courts and the Department of Highway Safety and Motor Vehicles; authorizing such clerks to compromise on or waive certain fees and costs; providing eligibility requirements;

562.111, F.S.; removing the mandatory driver license suspension requirement for conviction of possession of alcohol by a person younger than 21 years of age;

784.046, F.S.; amending; prohibiting attorney fees in cases seeking an injunction for protection against repeat, dating, or sexual violence;

784.048, F.S.; amending; revising the definition of the term "cyberstalk"; providing criminal penalties;

784.0485, F.S.; amending ;prohibiting attorney fees in cases seeking an injunction for protection against stalking;

812.014, F.S.; increasing threshold amounts for certain theft offenses; adding utility services to the list of items the theft of which constitutes a felony of the third degree;

943.0578, F.S.; creating a new statute; establishing eligibility criteria for expunction of a criminal history record by a person found to have acted in lawful self-defense; requiring the Department of Law Enforcement to issue a certificate of eligibility for expunction if specified criteria are fulfilled; specifying requirements for a petition to expunge; creating a penalty for providing false information on such petition; requiring the department to adopt rules relating to a certificate of expunction for lawful self-defense;　

943.0581, F.S.; clarifying administrative expunction applies to criminal history records resulting from an arrest made contrary to law or by mistake;

943.0584, F.S.; creating a new statute providing a definition; specifying criminal history records which are ineligible for court-ordered expunction or court-ordered sealing;

943.0585, F.S.; amending; providing eligibility criteria for court-ordered expunction of a criminal history record; requiring the Department of Law Enforcement to issue a certificate of eligibility to petitioners meeting eligibility criteria; specifying requirements for a petition for court-ordered expunction; specifying a court's authority to expunge criminal history records; specifying the process for a petition to expunge a criminal history record;

943.059, F.S.; amending; providing eligibility criteria for court-ordered sealing of a criminal history record;

943.0595, F.S.; creating a new statute requiring the Department of Law Enforcement to adopt rules to implement administrative sealing of specified criminal history records;

948.001, F.S.; revising the definition of administrative probation; authorizing a court to order an offender into administrative probation;

948.04, F.S.; amending; requiring a court to early terminate a term of probation or convert the term to administrative probation under certain circumstances;

948.06, F.S.; amending; requiring a court to modify or continue a probationary term under certain circumstances; requiring each judicial circuit to establish an alternative sanctioning program; defining low- and moderate-risk level technical violations of probation; establishing permissible sanctions for low- and moderate-risk violations of probation under the program; establishing eligibility criteria;

958.04, F.S.; revising the criteria authorizing a court to sentence as a youthful offender a person who is found guilty of, or who pled nolo contendere or guilty to, committing a felony before the person turned 21 years of age;

Looks like a good time for FACDL to sponsor a seminar covering all of the new laws that concern the criminal justice system.

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