2021 WEEK ONE V.20

 It is now January 5, 2021. We have NEW judges! Longtime and careful readers know how we feel about robed readers. Still, congratulations on your new career. As Winston Spencer Churchill's family toasted him in the evening of his first day at Number 10 Downing Street: "Here's to not buggering it up!"  Churchill had Fleet street to report his failures, unfortunately for our new robed readers.... You have Us. 

We do believe this humble blog has a mention in Judge Soto's initial meeting with every new Judge. Rightfully so. 

Now to new business. 

It is January 5, 2021. Here are some rules. 

ITEM: Merry Christmas should be replied to with a withering stare. No more of those please. 

ITEM: Happy New Year should have ended Monday. We will give you until the end of the week. But watch it. The longer the week goes, the less tolerance we have for such nonsense. One day is the same as the rest in reality. 

ITEM: The ball hung in the air, along with the Miami Dolphins season. The wide receiver had broken behind three defenders  in the end zone. The ball was a bit high and he jumped for it...

The Steelers had marched back in the fourth quarter and pulled within two points with a late TD with about a minute and a half to play.  One scenario for the Dolphins entry into the playoffs was the Browns losing to the Steelers. The Steelers, and even more so, the Dolphins needed the Steelers to tie the game. Alas, it was not to be. The ball sailed just a bit high, glanced off the fingertips of the wide receiver, and tumbled to the ground, along with the Dolphins playoff season hopes. When the music stopped, your Miami Dolphins were on the outside of the playoffs looking in. There is a lot of hope for next year. Your Dolphins are a playoff team. Bank on it. 

PM SHUTS DOWN ENGLAND

 Prime Minister Boris Johnson, to save the British healthcare system which is -Los Angeles like- teetering on the edge of being overwhelmed- has SHUT DOWN England for a month. No Pubs- gone are the days we could spend an afternoon drinking some Guinness pints in The Grenadier or The Dog and Duck (love the top floor hideaway for a quiet evening). No gathering in Trafalgar square. No strolling through Piccadilly. Schools are closed. The Virus is taking a terrible toll because of the new strain's increased transmission rate. More transmissions means more people sick and that means the health system gets swamped with more people than it can handle. 

England is facing 100,000 deaths within the next month. Per capita wise, that would mean 500,000 new deaths in our colonies. 

And make no mistake about this. The new and more virulent strain of the virus is rampaging through the United States like a hot knife through butter. It is looking for more healthy victims like a president searching for 11,780 votes in Georgia. 

We do not feel the sense of urgency in the United States like there is in England. 

And that foretells many dark says ahead. Because as careful as you have been staying healthy, you now need to be doubly careful. No more walking inside Starbucks to pick up your latte. No more wandering down the aisles of Publix in a mask. No more casual dinning with friends. Stay home. Wear a mask. Stay away from everyone. 

Please. 

2021 WEEK ONE

 Longtime and careful blog readers know that Rumpole's number one, inviolate rule of trials is to never ever ever allow a case to be set for trial during the first week of the New Year. Avoid the first two or three weeks of January if at all possible. 

The rule is based on years of experience. Watching colleagues and their clients go down in flames and judges issuing sentences well above the norm. 

There are multiple reasons for this. First and foremost is that Judges and Prosecutors spend the holiday weeks off during December pondering the prior year. And most of them reached the conclusion that they were too soft on defendants, which in turn allowed too many defendants to go to trial. And this of course, created more work than Judges want. So, as sure as Summer follows Spring, judges put their New Year's resolution into effect during the first one or two trials in January. "Let the word go forth" they fantasize saying, "Things are changing around here. You proceed to trial at your own risk. No more Ms. Nice Gal in these here parts." 

Of course as sure as Fall follows Summer, these Judges will- Casablanca like- deny the existence of a "trial tax" : "We are shocked! Shocked to learn that defendants are uniformly sentenced to a higher term of years after trial than before trial. Surely, if this is so it is because we, as Judges, "learned" more about the case, and not because we punished the defendant for going to trial and losing. Of course the Constitution forbids such a punishment."

State Court practitioners may wish to cite this case at appropriate times. We generally pull a dogeared copy of Wilson v. State from our battered briefcase right after the State says something like "the plea offer is withdrawn and the State is seeking the max sentence after trial." Acting stunned, we lift a copy of Wilson into the air and reply "Surely the prosecution is not telling this court that they will ask the court to punish the defendant for exercising his right to a trial by jury."

We also recognize that the constitutional right at issue in this case is not the defendant's right to appeal his conviction or sentence but, rather, the defendant's constitutional right to a jury trial. However, just as a trial judge cannot punish a defendant for exercising his or her appellate rights, the law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional

Wilson v. State, 845 So. 2d 142, 150 (Fla. 2003)

The less serious, but still relevant concern, is that who wants to spend the Christmas and New Years holidays preparing a case for trial? 

2021 is of course different. There are no trials this first week of January. But, like a vaccine, they are on the horizon. So it may be time to open the closet, bush those suits, shine those shoes, press those shirts and tie those ties. Trials are coming back. 

Just not during the first week of the New Year. 

NFL WEEEK 17 2020

 What a long, strange trip is has been. 

The best part of the NFL 2020 season, and a surprise, has been your Miami Dolphins. Doormat of the league for most of last year, they enter the last week of the season fighting for a playoff spot. Here is our vote for Miami Dolphins Coach Brian Flores to be coach of the year. Well Done Coach Flores, well done indeed!

Your Miami Dolphins are in Buffalo this last week of the season. Fitzmagic, their game ending not so secret weapon at quarterback is sidelined with Covid-19. The Dolphins season rises or falls on the arm of rookie QB Tua T. And this is where we lose hope. Because while your Miami Dolphins have the NFLs top scoring defense, they do not have a franchise QB, despite Mr. T being drafted in the first round. He does not have an NFL quality arm. He cannot throw deep and he cannot throw the ten yard out with any mustard on the pigskin. It is thus with heavy heart that we must pick the Bills -1. The game means something for Buffalo. A win guarantees them the number two seed. While Miami's good run game will keep the game close, it will not be enough.  Under 44.5. The weather will be bad. 

Titans -7.5 over Houston. Tennessee needs this game to clinch their division. They do so in strong fashion. 

Falcons at Tampa. Under 50.5 on a game that may well be meaningless to the Buccaneers by halftime. 

 Here is your Miami Dolphins playoff scenario. Win and they are in. It is that simple. OR....

A loss by Baltimore, Cleveland or Indy gets them in. The problem is that the Ravens play the Bengals and the only question is whether they cover at 13; Indy plays the Jags- they of the number one pick in the 2021 NFL draft- and the only question there is whether Indy covers the 14, and the Browns play the Steelers. This is the interesting one. The Steelers own the Browns over the last twenty years. But with Big Ben and his coterie of talented WRs sitting out, it is likely that the only question in this game is whether the Brownies can cover the 12. Your best bet is a Dolphin win in Buffalo. 

TODAY

 Today is the tomorrow you were so worried about yesterday. 

This year is the new year you were so worried about last year. 

In 2019 we celebrated on New Years eve  with the hope (and some with the firm conviction) that 2020 would be better. 

HA. 

But that is the point. New years are not necessarily better than years gone by. 

2021 could be worse than 2020. Blink. Breathe. Relax. This is true. 

Or it could be better. 

It is up to us. 

It is up to you. 

Stay apart. 

Wear a mask. 

Get vaccinated.  And then continue to stay apart and wear a mask until the virus dies out. 

Remain healthy and be prepared to meet our next challenge. 

As sure as the sun rose this morning, and as sure as last year ended last night, there is a new challenge coming to each of us individually, as a community in Miami, as a country of the United States, and as citizens of this small blue planet. 

Are you ready for the challenge? 

We are. 

Happy New Year. 

H. Rumpole, Esq. 

Blog Proprietor. 

VACCINATION LIST

 As a noted ethicist, we are often consulted about the issues of the day. And the current issue is who should get the vaccine first? We of course have the answer, because as our great law school property professor often said: "Sometimes wrong, never in doubt." 

1. Doctors and nurses and hospital staff. This one is easy. 

2. First responders. Ditto. 

3. Elderly people in nursing homes and staff. Double ditto. 

4. Witty legal bloggers from Miami. 

5. People with medical conditions such as cancer, diabetes, hypertension that make them more susceptible to adverse outcomes if infected with Covid. 

6. US Armed forces. 

7. Bartenders. It's been a long year. 

8. Restaurant and food service staff- restaurants are suffering. 

9. Athletes and Show performers. We need entertainment to help deal with the dark days ahead. 

10.  Meat processing plants  personnel. 

11. Corrections officers and inmates. 

12. Courtroom staff like court reporters and clerks. (Except the person who staffs the attorney line on nine at the courthouse. Considering they appear to have been working from home since 2012, no rush to vaccinate that privileged individual). 

14. Retail personnel. 

15. Librarians. 

16. Veterinarians.  

17. Opticians. 

18. Morticians. 

19. Starbucks baristas and those that manage the windows at the small Cuban restaurants that serve Cafecitos.  

20. Bagel makers. 

21. Writers. 

22. Sanitation workers. 

23. Casino workers. 

24. Zamboni operators. 

25. Used car salespeople. 

26. Microsoft and Apple helpline employees. 

27. The weather women on Channel Seven. 

28. Butchers and Bakers. 

29. Candlestick makers. 

30. Criminal attorneys. 

31. Airline employees. 

32. Cruise ship employees. 

33. Civil attorneys. 

34. Judges. 

35. Worm and Slug farmers. 

36. Politicians.  These last three were close. 

MARY ANN

 Dawn Wells, Mary Ann from Gilligan's Island has died from a Covid related illness. She was 82. 

2020 cannot end soon enough. 

MIAMI SAO 1982

 This is a blast from the past. The Miami Dade State Attorneys class of 1982. There were some young lawyers in this class who would go on to be legal legends. Send in who you recognize and a war story or two and we will post it. The easy one is the chap front and center with an electric smile. Hint- he finished his career like others in this class with the Feds. 

Photo Courtesy of an alert reader who got it from someone else we are told 

Miami in 1982 was emerging from being a sleepy southern town and drugs were the reason. Take a look at any of the buildings on Brickell and rest assured they were funded with drug money because the banks in Miami were awash in cash. They had billons more in deposits, made in cash, to loan. And up went Brickell. 

Miami had a new State Attorney- Janet Reno, four years into the job in 1982  and finding her feet. Miami and the Miami Dade SAO were facing a blizzard of drug cases and drug related murders, many courtesy of Griselda  Blanco, whose story is marvelously told by Miami Producer (and cohort with Mr. Markus on his podcast) Billy Corbin.  

Miami had the most murders. Miami had the most drugs. Miami had the most cash, and into this breach stepped this young crew of eager prosecutors. Their starting salary was NOT above $20,000. 00 a year and they were facing off against experienced trial lawyers who were charging $50,000.00 and $100,000 a case and had more cases than they could handle.  

In those days it was not unusual for a new prosecutor to be trying drug cases and drug murders within the first year, or shortly thereafter. The turnover in the office was huge- the money the dark side of the force would provide was irresistible to some:  one case was a house for a young lawyer and his family. A second case would pay off school loans. A third case would be savings for college for children. 

But many of these young guns resisted the lure. They stuck to their guns and their own morals. They had a leader who backed them and whom they idolized. And they fought the good fight. 

Did you know that back then the Miami SAO had no personnel office?  Janet's  secretary seemed to handle a lot of the issues, or a prosecutor might be sent to speak with ASA Shay Bilchik. No human resources office hanging over a prosecutor's head ready to fire them for an intemperate sexist remark in an email. There was no email. There were no word processors. The SAO had a typist section and prosecutors could call in and dictate motions on a recording that were then transcribed. You got your document in a gray or yellow "inter-office memo" envelope. Above your name on that envelope might be the names of Abe Laeser, George Yoss, Ed O' Donnell senior, Janet Reno, head of appeals Richard Shiffrin, Hank Adorno, and a host of other prosecutors who were or became legends.  

At the time there may have been three or four  minimum mandatory sentences. One for drugs and drug trafficking. One for guns, one for sexual battery on a minor,  and of course a 25 year min man for first degree murder. There were guidelines that actually were enforced. We seem to remember that a GL sentence for second degree murder was 12-17. Of course now, if your client thinks  about a murder, there is a mandatory life sentence. Now there is no legal distinction for punishment for a second degree murder bar fight.  Now twenty-five year old prosecutors are more entrusted to make correct legal sentencing decisions than fifty-five year old judges. 

And of course, on the other side was a new generation of PDS, the office having been injected a decade earlier with the energy and enthusiasm to try cases by young PDs Roy Black, H.T. Smith, and Jack Denaro.  Did you know the SAO and the PDS and a law library were all in the REGJB?  (As the Captain correctly points out, the courthouse was called the Metro Justice Building. The REG stands for Richard E Gerstein, the State Attorney before Janet Reno. It was not unusual if you were in the courthouse to see a tall, imposing man walking the hallways with some other lawyers and a client who had paid a lot of money, That was Mr. Gerstein. And political power being what it was, it was entirely possible his mere presence would cause a judge to find an issue previously unseen and dismiss the case, sometimes without being asked!) 

County Court was in the front of the courthouse on the first floor, where courts with numbers beginning with "1" now are. The SAO Main office was on six. As you got off the up escalator, there was a "fishbowl" to your left with a receptionist. Behind her was an area for the public to sit while the ASA was called. The courtrooms and hallways behind them  now there were non-existent.  Narcotics, appeals, and public corruption were on nine. The PDs were on eight (or was it seven?) .  You didn't have email or cell phones, but you could take the stairs and have a sit-down with your counterpart and work some cases out. And you just might see Janet Reno in the stairwell. That is how she got her exercise. Sometimes she took a sleeping bag to her office and slept over night to work on the weekends reviewing dispositions and charging decisions and whether to ok an appeal. 

There wasn't homicide duty- there was "beeper duty". And the beeper at first was some marvel that transmitted a radio call from the police dispatcher telling a prosecutor, complete with static, to call a number. A prosecutor would  carry a roll of dimes and find a payphone if they were out and about and received a message to call a detective. (For more about what a "payphone" was, younger judges can click here). 

Want to win a DV case in 1982? Just tell the judge that the woman in the court with the black eye is married to the defendant. And the white, male  judge dismissed it 98% of the time. 

The Fourth Amendment mattered. Motions to suppress were granted. Judges didn't fear the Herald on a case.  Sentences were reasonable, unless you went before Morphonious and lost a case. Then your client couldn't count that high, but even so, they were out maybe in twenty, maybe in less. 

The name of the institution serving food on the first floor- Cozzoli's  (not Casolas) and yes, you could smoke inside the restaurant. 

There are so many more memories we are missing but we know our readers will fill in the blanks. And send us your SAO or PD class pictures and lets have some fun. 

THE DEATH OF TIMES NEW ROMAN

 As the end of 2020 approaches, a sui generis year if there ever was one, there is one more thing to mourn: the death of the Font Times New Roman. This is a font we love. We use this font in our pleadings, and on this blog. 

The Florida Supreme Court took the font out, and like a defendant appealing the denial of a motion to suppress an illegal search, the Florida Supreme Court put the last nail in the coffin. 

You may not, repeat, you mayn't use Times New Roman in your appellate briefs in 2021. So say we all. Per curiam killed. It's over Johnny. The font is dead. Long live the font. 

Effective January 1, 2021 at 12:03 a.m., the Florida Rules of Appellate Procedure have been modified to require, among other things, that computer-generated documents be filed in either Arial 14-point font or Bookman Old Style 14-point font.  In addition, the page limits for computer-generated briefs and petitions were converted to word counts.  The changes also require that the certificate of compliance at the end of a document which is subject to a word count certify that the document is in conformity with all font and word count requirements.  To ensure compliance with the new requirements, all filers are encouraged to review the Supreme Court of Florida’s opinion at: https://www.floridasupremecourt.org/content/download/692679/opinion/sc20-597.pdf.

The above is Arial font. To use a technical legal term....it sucks. 

We, of aging eyes and shortening arms, support the use of 14 point font. But we mourn the death of a font that has been the tip of the spear of our briefs and motions which have skewered legions of opponents. The written word, so beautifully conveyed in Times New Roman, has freed many a client. 

But now, Covid-like, with the stroke of a pen, the Supremes have unleashed a pathogen that will inexorably alter written arguments in Florida for ever after. 

Today we mourn.  Goodbye old friend. We had a great run. 

(Have we mentioned we really don't like this order? Font Lives Matter!)

NFL WEEK 16 2020

UPDATED WITH A CHRISTMAS FITZMAGIC WIN 

And sharp eyed readers will notice a change in our blog motto on the banner. 

 Before we get to the picks and the games a little home work. 

Please watch Queen Elizabeth II's Christmas message. There will never be another like her. She is a treasure beyond measure. 

 

 And BTW the song starting the BBC broadcast is NOT My Country Tis of Thee. It is God Save The Queen. God save our gracious Queen. Long live our noble Queen. God save the Queen. Send her victorious. Happy and glorious. Long to  reign over us. God save the Queen! This is the U.K.'s national anthem and we suggest you learn it. 

This is the last Sunday of football in a strange 2020 season. Enjoy it. 

Home dog Steelers to put the wheels back on the bus finally. Pittsburgh +1.5 at home over Colts. WIN 

Titans +3.5 on the road at Green Bay. Yes the Pack is having a great year. But Titans RB Derrick Henry is having an MVP season and football is still a game where a RB can put his team on his back and carry them to victory. 

Rams at Seahawks over 47.5. You have to assume the Rams are a mite upset over their loss to the J...E...T....S.... Jets Jets Jets last week.

Speaking of which, we will hop on the bandwagon and take the J....E....T.....S.... Jets Jets Jets +10 against a Cleveland Browns team that might just be looking ahead to their season ending matchup against the Steelers next week. Update- losing their top four WRs to covid, the Browns game is off the board. So we like the Jets even more. Remember, before winning their last game, the lost the game prior to that on a last second bonehead defensive play. WIN 

A FITZMAGIC CHRISTMAS MIRACLE

Yes Virginia, there is a Santa Claus. He has a big long beard, wears number 14 for the Miami Dolphins, and he is the elfin spirit of the team that is still alive and kicking in the playoff race. 

This Christmas gift starts with a first- for the first time in his 16 year career, Dolphin backup QB Fitzpatrick had to use the bathroom during a game. It happened in the 4th quarter, and those of us with some gray hairs can understand the urge. When Fitz returned relived, head coach Brian Flores told him to grab his helmet. The Dolphins needed a spark on offense. Down 13-6 in the 3rd Q, TT had led the Fins to a TD and a tie with a nice crisp pass to running back Gaskin who took it in from five yards out. The Raiders responded with a FG of their own late in the 3rd quarter and were up 16-13, at which point TT hit a wall. His passes were not crisp and he was sacked on a crucial third down early in the fourth quarter. The Fins were still down by three when Flores went to his bullpen and his reliever, the aging, wily veteran who still has a few tricks up his sleeve as Howard Cosell would have said in his nasal twang. Judges under 40 who are puzzled by this reference are invited to stop reading a blog that makes cultural references needed for good writing. 

Back came the Fins and Fitz with two gun slinging throws over the middle to their emerging tight-end star Gesicki.  The drive stalled inside the ten with 4 minutes left and the Fins tied the game with a FG.   The Raiders have a gunslinger at QB as well, and Carr launched a deep one from his ten that was caught 45 yards down field and WR  Nelson Agholor raced into the end-zone. The Raiders missed the extra point and were up by six,  22-16 with 3:15 left. Now it was going to get fun. 

At his own 40 Fitz hit RB Gaskin with a ten yard square in. Gaskin shed one erstwhile Raider tackler as cavalierly as one of our own Judges denying a motion to suppress in a death penalty case, then juked another wannabe tackler and was off to the races. 23-22 Miami with 2:55 left to play. 

Another Carr deep bomb to Agholor who had toasted the Fins earlier resulted in perhaps the worst pass interference call of the season. Basically the ref decided that if the Fins had eleven men on the field that was PI, because the Miami Defensive back had adequate coverage at best. If when you read this and pause a minute, the Dolphin defenders are just getting close. Now the home team had the ball on the 12 with 2:22 left and Coach Gruden went into the NFL equivalent of the four-corners offense. He did not want the TD the Dolphins were offering. He wanted to run out the clock. A draw brought Jacobs the Raiders bruising running back to the one with over a minute to go. Jacobs dived to the ground rather than score. A couple of kneel downs later and the Raiders were back up by two with 19 seconds left 25-23.  

Fitz didn't need it all. Santa took the snap at his 25.  Here was the miracle- A 34 yard pass play caught by Fins WR Matt Collins in-bounds at the Raiders 41 in which a Raider D lineman had Fitz's facemask and was twisting it  like a bottle of cheap wine with a screw on cap that so many of our robed readers are forced to consume on their limited state salary. Fitz threw the ball blind, but it was caught. Tack on 15 for the facemask and the fins were  in FG position. A play later they kicked the game winner with six seconds left.  

Somewhere in the night Vegas sky, that new stadium cavernous and empty, a sleigh was seen led by a creature with a red nose. And the driver of the sleigh, a portly fellow with a beard, similar to the Fins own QB, was chuckling "Dolphins win...ho ho ho."

Your Miami Dolphins now have a 65% chance to win. Just hope the Ravens lose, but it is not needed. All they need to do is win next week at Buffalo and they are in. Win and in, It has been a very long time since a Fin fan could say that. Merry Fitzmas. 

COMING MONDAY: The death of an old friend. And the Florida Supreme Court is the killer. Their fingerprints are all over the knife. 

ALL THE GOOD OF 2020

 Get lemons and make lemonade. It is what we as criminal defense attorneys are trained to do. So lets take a look at an awful year and figure out what good came of it? 

VIRTUAL HEARINGS

 This is the game changer for law and the courts.

Civil Court:  Civil judges have five minute motion calendars. A lawyer who lives in Kendall and has an office in Dadeland will spend two hours commuting to downtown Miami, then waiting in Court, then driving back to the office. Now with virtual hearings, they can handle it in on Zoom in their office. It saves time and money and even helps the environment by taking carbon emitting cars off the streets. It is a no-brainer which is why we are sure some judges will want to immediately go back to live hearings and no Zoom. There is no reason why even more complex hearings like  summary judgements (whatever those are) cannot be done virtually. 

Criminal Court: Misdemeanor courts can save defendants and witnesses a lot of time and money. County Court is often called "The People's Court" but really it is "The Poor People's Court." As we know, many people struggle to pay bills with two or even three jobs. We cannot tell you how many school teachers we have met as Uber drivers or Starbucks Baristas.   An appearance for a calendar call or arraignment  involves taking a morning off from work, paying for parking, and then sitting in court as lawyers come streaming in and cutting ahead of you. Now, with a virtual hearing, a person can take a half hour break from work, step into a quiet room, and turn down the State's offer of 364 for expectorating on the sidewalk. Once again, we are confident Judges will want to return to the old ways. One thing that they are certain to say is "how can we do in person and virtual hearings at the same time? It will be too difficult."  

The answer is that when people set their court date you give them an option for virtual arraignments and report dates and then the clerks put those hearings into a Judge's schedule for the week. At 9 a.m.  a Judge does in person arraignments. At 9:30 a.m.  virtual arraignments. At 10 a.m. in person reports. At 10:30 a.m. virtual reports. And so on and so on. 

The great Golf Champion Gary Player broke the mold for golf players and athletes in the 1960's. He stretched and ran and did yoga and lifted weights and studied nutrition back when such things were ridiculed. Well into his 90's, he does 1000 sit-ups and 100 pushups a day. He has ten rules for living, the first and best is "Change is the Price of Survival." 

We have a real chance here to remake the court system as more user friendly. The world and the virus has literally pushed an antiquated court system into the 21st century. Credit to Judge Soto and her team of Judges who got it up and running quickly. Please do not go back to the old ways. Let it be that sometime around 2040 a group of lawyers and judges are meeting on line and a few of the old-timers reminisce about the days when lawyers and litigants had to go to court in person for arraignments, status conferences, and motions. 

Lets take the lemons of 2020 and make some lemonade (virtually, of course). 

 MERRY CHRISTMAS 

And the angel said to them, “Fear not, for behold, I bring you good news of great joy that will be for all the people. For unto you is born this day in the city of David a Savior, who is Christ the Lord. And this will be a sign for you: you will find a baby wrapped in swaddling cloths and lying in a manger."

Luke 2: 11

THE GRINCH WHO BLOGGED CHRISTMAS

 It's known by many religions and beliefs under different names. The Grinch. The Airing of Grievances. The Anti-Clause. Call it what you like, but true to our nature, here are all the things we do not like this time of year. They are listed in no particular order. 

1. Holiday cards. Useless. They do not matter one whit. It is not as if one family member says to the other "this holiday was just awful, but then at the last moment...remember that law firm that did our title insurance? Well they just sent us a card wishing us...get this...a WONDERFUL holiday season. That changes everything."  Horse-hockey. It's a waste of postage and trees and we want it to stop. 

2. Holiday emails. Starting around Thanksgiving, we start receiving emails from law firms that somehow have our email address. "Wishing you a wonderful Thanksgiving." Oh Boy! The turkey would not have tasted as good until we got that email from the local counsel we used in Chicago for that federal case wishing us a happy Thanksgiving. Now we can eat in peace.  We resent the time it takes to hit the erase button on this waste of space in our email in-boxes. 

3. The Thanksgiving and Christmas emails that say something like "In lieu of sending holiday cards, our law firm is making donations to the Save the East Indian Spotted Donkeys charity and the Feed the Hungry Gerbils of the Ukraine."  It is our strong view that true acts of charity occur anonymously.  Anything else is just feeding the ego and shopping for back slapping. "Hey those guys and gals at Dewey Cheetum and Howe are great people. They just made a donation to the Save the Frogs of the Mohave Desert Charity...they are sooooo enlightened. Maybe I should refer them my next money laundering case."  Save it and stuff it and if you mean it then do it and keep it quiet. Otherwise it's just offensive to us and we think others. 

4.  New car commercials that assure us that the car we are buying is sanitized. BFD. Nothing we cannot do with a can of Lysol. "Hey honey. I loved the Dodge, but the Cadillac comes sanitized so I guess we should buy that one." Really? That matters? No it doesn't so just stop it. 

5. Establishments that make you choose a line. We have been over this before. There are four tellers or checkout registers. You should not have to gamble that the person in front of you is going to forget a package of onion dip and take ten minutes to go find it. One line. When the next teller or checkout station is available you then walk to it. Banks have it right. Why can't supermarkets and CVS and Walgreens get on board? 

6. LOL. You are NOT laughing out loud. So stop texting it. And if by some slim chance you are in our company and during a conversation actually say "LOL" do not wait to finish you café latte. We did just get up and leave without saying a word. And now you know why. 

7. Straws in water. We are not six. We can drink out of a glass without assistance. LOL. Save the planet. Stop with straws. 

8. If you wear a mask and expose your nose why not just cough on us? Idiot. 

9. When ordering at a restaurant nothing is acceptable other than "May I please have...". "Gimme..." or "Get me " or even "Let me have" are nothing more than signs of uncouth ignorance and we shall not stand for it.  "I would like" is barely acceptable but frowned upon. 

10. Not demanding another recount in Georgia. It's passé. 

11. Fake news. 

MERRY CHRISTMAS 

In lieu of sending you a card, we have donated money to the Home for Aged and Addled Judges. It's a worthy cause. 

NUTS

 Reference is made to yesterday's blog post to set the stage for where we are. 

By Christmas eve, 1944, the American artillery in Bastogne was out of ammo. The Germans could move their tanks without fear of an artillery strike.  The skies were cloudy and snowy, limiting the ability of the U.S. Army Air Corps to resupply Bastogne, which was completely surrounded by the German Wehrmacht. The sun did not rise until 8 am. The sun set at 4pm. There were sixteen hours of cold darkness. And still the Germans came with their tanks. And still the 10st held. 

On Christmas eve day, the Germans attacked the 506th Parachute Infantry Regiment outside of Bastogne. This was Easy Company, made famous by Stephen Ambrose's great book Band Of Brothers. When the battle ended, the Germans having been thrown back by a combination of rifle, machine gun and mortar fire, one member of Easy Company counted thirty-eight German bodies. In his book Band Of Brothers Ambrose writes " The men of Easy Company, 506th PIR, 101st Airborne Division came together in 1942... Some were desperately poor, others from middle class. One came from Harvard, one from Yale, and a couple from UCLA...They were citizens soldiers... By the spring of 1944 they were an elite company of airborne light infantry...at the peak of its effectiveness...it was as good a rifle company as there was in the world." 

All of that would be needed and more as Christmas came to the Ardennes forest. And on that Christmas eve, 76 years ago,  here was the gift the 101st gave America and the world. General McAuliffe issued his Christmas message to the 101st. It is worth reading in its entirety. It explains what American exceptionalism really is. It is what we are made of. This is what we, this Christmas, huddled in our homes, fearful of an unseen enemy should be thankful for and remember. That in 1944, in weather below zero, a few thousand American men, dug some holes in a forest and said to their buddies "We stop them here". And they did.  It may just be the greatest Christmas gift one group of American men gave their nation. 

MERRY CHRISTMAS

HEADQUARTERS 101ST AIRBORNE DIVISION
Office of the Division Commander

24 December 1944

What’s Merry about all this, you ask? We’re fighting — it’s cold, we aren’t home. All true but what has the proud Eagle Division accomplished with its worthy comrades the 10th Armored Division, the 705th Tank Destroyer Battalion and all the rest? Just this: We have stopped cold everything that has been thrown at us from the North, East, South and West. We have identifications from four German Panzer Divisions, two German Infantry Divisions and one German Parachute Division. These units, spearheading the last desperate German lunge, were headed straight west for key points when the Eagle Division was hurriedly ordered to stem the advance. How effectively this was done will be written in history; not alone in our Division’s glorious history but in World history. The Germans actually did surround us, their radios blared our doom. Their Commander demanded our surrender in the following imprudent arrogance:

December 22nd 1944

“To the U. S. A. Commander of the encircled town of Bastogne.

The fortune of war is changing. This time the U. S. A. forces in and near Bastogne have been encircled by strong German armored units. More German armored units have crossed the river Ourthe near Ortheuville, have taken Marche and reached St. Hubert by passing through Hompres-Sibret-Tillet. Libramont is in German hands.

There is only one possibility to save the encircled U. S. A. Troops from total annihilation: that is the honorable surrender of the encircled town. In order to think it over a term of two hours will be granted beginning with the presentation of this note.

If this proposal should be rejected the German Artillery Corps and six heavy A. A. Battalions are ready to annihilate the U. S. A. Troops in and near Bastogne. The order for firing will be given immediately after this two hour’s term.

All the serious civilian losses caused by this Artillery fire would not correspond with the well known American humanity.

The German Commander”

The German Commander received the following reply:

22 December 1944

“To the German Commander:

N U T S !

The American Commander”

Allied Troops are counterattacking in force. We continue to hold Bastogne. By holding Bastogne we assure the success of the Allied Armies. We know that our Division Commander, General Taylor, will say: “Well Done!”

We are giving our country and our loved ones at home a worthy Christmas present and being privileged to take part in this gallant feat of arms are truly making for ourselves a Merry Christmas.

/s/ A. C. McAULIFFE
/t/ McAULIFFE
Commanding.

It does not get better than this. Think about those men, all gone now, Cold, far from home, dug in a forest, when you sit down with your family for Christmas. Think about them dropping from the sky into Normandy, France, to lead the liberation of Europe. And think about those same men, holding a line, in a small town during the worst winter in Europe in over 100 years. Fearsome German Panzer tanks bearing down on them. No artillery. No air cover. A little ammunition. Short on everything but courage. This is the Christmas present they gave us. For the rest of our days, it is what we will  think about every Christmas. 

Merry Christmas and G-d bless the United States of America that we can produce citizens like that. 

Post Script: On December 26, 1944,  elements of General George S Patton's Third Army broke through the German lines and "liberated" Bastogne and then pushed the Germans back across the Rhine River. Portrayed in the movie Patton, what Patton did was much more ingenious and a testament to his abilities as a commander. Beginning in November, Patton began planning for a massive German counter-offensive. Ten days before the German assault began, Patton's intelligence officers began to see a pattern. German panzer divisions had "disappeared". By December 14, Patton had contingency plans to counterattack a German attack to the North of the areas he was attacking. This included the area of Bastogne.  He directed his staff to prepare plans for his Army to disengage, turn ninety degrees and prepare to counterattack. Prior to December 18, Patton had already sent his 10th Armored Division to the north of his position to counter the German attack. On December 18 he met with his superior- General Omar Bradley, who told him he needed to attack to the North. Patton was prepared. The 4th Armored Division, the 26th and 80th Infantry divisions had already disengaged and headed towards Bastogne. Within three days Patton's divisions were engaging the Germans and pushing them back. In another three days his troops entered Bastogne. 

To their dying day the men of the 101st Airborne division would never admit to being "liberated" by elements of Patton's Third Army. Many a late night bar fight in the US broke out when members of the Screaming Eagles would cross paths with one of Patton's men. While what Patton did was almost unique in the annals of modern warfare, to the 101st,  it was not needed- they never forgot what one of their own said when the situation was at its darkest- "they have us surrounded, the poor bastards." 

THEY HAVE US SURROUNDED, THE POOR BASTARDS.

 The American soldiers fled in a panic. Running, they dropped their weapons screaming "They're killing everyone! Run for your life!" Walking the other way was a group of men, battle hardened, wearing summer clothes in the middle of the worst winter in Europe in over one hundred years. Occasionally they would stop to pick up the ammunition the green American soldiers were dropping in panic. Sometimes they would ask for the panicked GI's winter coat and sometimes they would get it. They had dropped into Normandy (where Eisenhower had been told before D-Day that he could expect their casualty rate to be over 90%- which it turned out not to be- they were too good)  and into Holland in Operation Market Garden. Each time they had faced off with the best of the Germany army, professional soldiers all, they had beaten them mano-a-mano. They were the best America had to offer and they may well have been the best America ever had to offer. 

They were the men of the 101st Airborne division and they had been ordered by General Eisenhower into the "bulge"- the German surprise advance that pushed the allied lines back, creating the famous bulge. Eisenhower had looked at a map and his gaze was drawn to Bastogne, a small town in the Belgium Ardennes forest. It was in valley surrounded by mountains and it contained the crossroads of highways that the German Panzers needed. "We stop them here" Eisenhower said, and sent in the only divisions he had available- the Airborne divisions of the 82nd and 101st. They did not have a full complement of ammunition. They did not have winter clothing. They were about to enter the largest battle of WWII. 600,000 American soldiers. 20,000 would be killed. 20,000 would be captured and 40,000 would be wounded. 

Having decided  to hold the line at Bastogne, Eisenhower deployed his secret weapon: mobility via the Transportation Corps manned mostly by African American soldiers driving trucks  in the segregated Army. On December 17, 1944,  11,000 trucks carried 60,000 men, plus ammunition, fuel, medical supplies and other material into the Ardennes. 

Two days later, trucked in through France and then Belgium,  dropped off a few kilometers outside of Bastogne (the paratroopers called it a "bumper jump" jumping only out of the back of a truck), the 101st did not have long winter underwear, or wool socks, or warm jackets. Their boots were not lined or weather proof. Facing off against 25 German divisions, including the best soldiers of the Wehrmacht, the 101st was undermanned, insufficiently armed and inadequately clothed. It would not matter. As they marched into Bastogne, the citizens handed them warm cups of coffee. Their orders were simple. Hold Bastogne. Period. Stop the German offensive. 

On the nights of December 19 and 20, as the temperatures fell below zero, the rifle companies of the 101st dug in. Outside of Bastogne,  near the town of Foy, the 506th rifle company of the 101st Airborne was attacked by the Wehrmacht's Second Panzer division. When it ended, the Americans had lost 13 officers and 199 men. The Germans had lost 30 tanks, and close to 1000 men. The 101st had held the line. 

On December 20, it began to snow. The temperature would not climb above freezing for a month. One paratrooper, returning from the front lines to the town to pick up some supplies was told by a medic:  "Have you heard? The Germans have us surrounded, the poor bastards."  In the fields outside of Bastogne, runners went into town and returned with empty flour sacks that the paratroopers, dug into fox-holes, fashioned into coverings for their summer boots. They ate partially frozen K rations and cold navy beans as they manned outposts in dark woods, facing German Panzers with their rifles, a few grenades, ingenuity, and a fighting spirit that could not, and would not be broken. The airborne had beaten the Germans every time they had faced off. Lack of ammo and subzero temperatures were not going to change their ability to prevail. These were the best Americans of their generation. They had never let Eisenhower down, they had never let their country down, and they were not going to do it now. 

And it was about to get worse. Part II tomorrow. 

CONSTITUTIONAL CALENDAR DECEMBER 21 2020

 It is the last Constitutional Calendar of the year by the noted Probate Jurist Milton Hirsch. And it is a good one. And then if you need some holiday reading, check out the concluding paragraph for purchase information. 

Lambdin P. Milligan was a “Copperhead” – he didn’t like the Civil War or the way Lincoln was prosecuting it, and he wasn’t unwilling to say so.  Military authorities convened a military commission, tried and convicted him, and sentenced him to death.  All this took place in Indiana, where there was no Confederate army and the civil courts were open and functioning.  

Before the Supreme Court, Attorney General Stanbery and former Attorney General Butler argued that the power of the executive to conduct war was unfettered by law.  Inter arma silent leges.

Justice David Davis rejected that position in the language for which he is best remembered.  “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”  See Ex Parte Milligan, 71 U.S. 2 (1866).

Although today J. Davis’s opinion is considered a pillar of the rights of liberty, at the time it was released it generated enormous controversy.  Southern editorialists argued vehemently that, after Milligan, Union forces should be withdrawn from the former confederacy and trials of crimes – notably, of the many murders of newly-freed blacks by vengeful and angry whites – should be left to local courts and local juries.  Not a few Northerners viewed Davis’s ruling as a surrender in the courtroom of what had been bitterly won on the battlefield.  

Milligan died on this date, December 21, in 1899.  

The Constitutional Calendar will be taking the remainder of the year off, resuming in early 2021.  To fill the gap in your leisure reading, and to better enjoy the holidays, read The Wheel of Justice, the last novel in my Judge Clark Addison mystery trilogy, available from Amazon for a paltry $14 and some cents.

COVID CHRISTMAS UPDATE

 We have a vaccine that probably works. * But things are going to be worse before they are better. 

Item One:  a new strain of the Covid19 virus is racing through England. As with all variants of a virus, this new strain has a genetic fingerprint that makes it easy to identify. The belief is that the new strain is easier to transmit. There is a small amount of data that indicates the new strain is just a simple mutation that is no more deadly than any other strain of Covid19. There is almost no data as to whether the vaccine protects against the new strain. That data will come from England as health officials monitor those who have been vaccinated. If people with the vaccine contract Covid19 5% of the time or less, than the vaccine will protect against the new strain. If 50% of the people vaccinated contract the new strain of Covid19, then it's a whole new ballgame. 

Parts of England have been placed on a Tier IV lockdown, meaning that bars and restaurants are closed, as are most public places, and visitation among households is not allowed. For the hardest hit areas, the ban on visitation extends to Christmas day. 

Europe, no big fan of the UK these days anyway because of Brexit, is shutting down travel with England. The Chunnel between England and France is shut. Ireland, Italy, France, Portugal, Belgium, the Netherlands, Turkey, Israel, and Saudi Arabia have banned flights from the UK for any passengers other than returning nationals.  Governor DeSantis of Florida invited all of London to Miami, and told them they could leave their mask at home. 

Item Two: California Hospitals are full. We are seeing the aftereffects of people mingling during Thanksgiving. While no patients are being turned away, hospitals are turning operating rooms and garages into Covid19 treatment centers. What this means is that if Americans celebrate the upcoming Christmas and New Years holidays by socializing with each other, than we will see yet another rise in infections and death the end of January. Welcome to 2021. 

Item Three: There are rumblings that the President should impose martial law. There are suggestions being made at the highest levels that the military will "re-run" the election in several close states that the President lost. A republican Congressman (Matt Gatez, Rep., Sleaze, Florida) and a Republican Senator Elect from Alabama, former Football Coach and noted constitutional scholar Tommy Tuberville plan to challenge Congress certifying the results of the electoral college in January. 

Here's how this plays out. The 117th Covid Congress is sworn in on January 3, 2021. On January 6, 2021, Congress meets to count and certify the votes of the electoral college. "The person having the greatest number of votes shall be the President." Article II, Sect. I. "Unless the person is a Democrat..." Article II, Sect I, Republican/QAnaon Constitution of the United States of Trump.

If any Congressmember objects to a State's total, then a Senator needs to object as well. If a senator (like Tuberviille)  objects to the State's total, then both chambers of Congress must debate the objection for a maximum of two hours. For an objection to be sustained, both chambers of Congress must vote by a majority to sustain the objection. 

After the objections are debated and voted on, the electoral votes are read out, and Vice President Mike Pence, newly vaccinated and the presiding officer of the Senate will declare the winners of the election. Then the VP will crawl back under the rock he crawled out from. 

Then there will be an inaugural, and on that day, January 20, 2021, Former President Trump will file papers as a candidate for the 2024 presidential election, which will allow his campaign to raise hundreds of millions of dollars. Unless he gets the new strain of the Covid19 from England, and loses his voice for good. 

* We say that the vaccines "probably" work, because it is a truism of vaccine investigation that you really need data from over three million people before getting a very good statistical view on the vaccine's effectiveness and side-effects. That data takes about three to five years. So we are still feeling our way with this new group of vaccines. For example, no one knows how long the vaccine will provide protection for. The only way data on that will be available is when previously vaccinated people get infected with Covid19. So here is what Rumpole says: Once you get vaccinated, be safe. Still wear your mask in public. Practice social distancing, which for a misanthropic blogger like us is easy,  continue to wash your hands and avoid crowds. 

12 DAYS OF XMAS NFL WEEK 15 2020

 On the First Game before  Christmas, Rumpole predicted for thee, the Dolphins beating the Patriots by almost three (+2.5).  (WIN) 

On the Second Game before Christmas, with Brady in the mix, the Bucs beat the Falcons by six. (Loss)

On the Third Game before Christmas, while decorating the tree, the Vikes will beat the Bears by three.  (Loss)

On the Fourth Game before Christmas, although the Cards are favored by six point five,  Rumpole picks the Eagles to thrive. 

On the Fifth Game before Christmas, although the Giants are getting four, Rumpole says the Browns will win by more. 

Happy Holidays. 

JUDICIAL RELOCATIONS 2021

 We have advanced degrees in Economics and Political Science as well as literature. We have been members of multiple state bar associations since almost before Joe Biden was a senator (not quite, but close). We sent the first prosecutor scurrying to the showers bruised and beaten when Leonid Brezhnev was alive and in power. For fun we solve differential equations and ponder string theory. 

Our point is we have some semblance of intelligence, although legal minds may differ.  

But this we cannot make heads or tails of.

Judicial Relocations 2021 [12!16!20] Aa by HR on Scribd

 

The diagrams of the first American Nuclear weapons allegedly stolen by Ethel And Julius Rosenberg would be more comprehensible than this. Ancient Sumerian texts uncovered after eons of time describing complex mathematical formulae are easier to decipher. The  NSA currently has a team of cryptographers examining the document and the CIA may replace the Kryptos  puzzle outside of their HQ in Virginia with this document. 

This document, subject to a recount in Georgia, purportedly indicates where judges will be assigned in Miami Dade County in 2021. 

You figure it out. 

COUNTY COURT AND COURT ID UPDATES

 You as a reader like the Blog. The humor, the insightful commentary by a blogger who ONLY blogs and whose blog hasn't become a stepchild to a star-studded career as a Podcaster like you know who. Just call him Mr. Hollywood, Esq. 

But as much as you like regular blog posts, you LOVE the County Court updates. Can't live without them if truth be told. So here is another one for you to revel in. The BIG news is you do not have to attend arraignments in County Court if you file an NOA, but they would like you to. 

Update from Judge Faber:

  

All new cases in County Criminal are being set for arraignment regardless of whether a NOA/Discovery demand has been filed by counsel.  There is no penalty for failure to appear when these documents are filed, the case will simply be set in a trial posture, but it is an effort to address all our cases before they are placed in that status in an effort to try and resolve them.  We would appreciate counsel appearing for these arraignment hearings despite those documents being filed as it may facilitate resolution.

 

All current trial cases in County Criminal are being set for reports in each division to determine whether that case can be resolved without a trial.  Attorneys are expected to attend those hearings.

 

Jury trials are not possible until February 1^st pursuant to an order from Chief Judge Soto.  Those jury trial cases that are certified ready (all outstanding pre-trial motions and issues resolved) will be scheduled after that date.

 

Best and be safe,

 

Robin Faber

Query: We are not County Court mavens. It is not our milieu. So we may be wrong about this, but if a lawyer files an NOA then do not  the rules of procedure excuse her from attending the arraignment? If so, what makes the update "news" ?  Just wondering. 

And now the all important Security Card/Access Update that you have been anxiously waiting for. There is a reason you pay dues to the FACDL and this is it. An epistle from the Prime Minister of Defense, the head honcho of the Miami Chapter of the FACDL: 

In light of the suspension of trials until February and the continued non-use of the Gerstein Building, I reached out to AOC and requested that the courthouse ID expiration be extended further than the February 28 deadline previously set.  They agreed with our position, that such a brief extension doesn’t really do much for us because its pretty clear we still wont be “back” enough to even need the IDs.  Further, the amount of interpersonal contact needed to distribute the IDs is just not safe.

As such, AOC has extended the expiration of the courthouse IDs until July 31, 2021.  Come late-spring, we will discuss whether another extension will be necessary, or if we can begin the renewal process at that point in time.  I had originally requested an extension until December 31, 2021, and this is not exactly what I wanted, but it’s at least a little bit better for now.  As with everything else, this is a fluid situation and we are staying on top of it. 

Rumpole  says "well done"! Now how about extending that IRS deadline until July like last year?