DON'T PICK VICK.

Things look bleak for Vick.

The last two remaining co-defendants in the Michael Vick dog fighting case who have not yet pled guilty have now indicated that they will plead guilty, leaving Vick and his counsel to contemplate a very lonely counsel table when trial begins on November 26, 2007. Sources are whispering that Vick and his attorneys are trying to negotiate a deal that would call for less than a year in prison.

Query: Is a year in jail sufficient punishment for a person who abuses animals on the scale Vick is accused of doing? Would you support your football team in employing Vick if he pleads guilty and does time in jail?

PADILLA JURY OUT?

The Federal Blog has coverage of the closing arguments in the Padilla case. Markus reports second hand that the word is that Padilla’s counsel did a fantastic job. Go check out the Blog for coverage. Rumpole says the over/under is Monday for a verdict. We bet over.

BROWARD JAIL SLOW POKES

This Sun Sentinel article touches on what we have all known about the Broward Jail: That it takes forever to be released even after a bond is posted. The article is
HERE

What is it about North of The Border that just makes them so difficult? They send more people to prison than any other circuit, and even when you should be released from jail, they hang on to you like a Judge clutching a free chicken wing at a fund raiser. We smell a class action lawsuit brewing here. Anyone know Hank Adorno’s number in Atlanta?


MEGA HURRICANE DEAN

In an effort to fulfill our public service requirements we will be posting the National Weather Service’s Advisory’s along with the Channel 7/Miami Herald interpretation of the advisory:

Tropical Storm DEAN Public Advisory
WTNT34 KNHC 142045
TCPAT4
BULLETIN
TROPICAL STORM DEAN ADVISORY NUMBER 6
NWS TPC/NATIONAL HURRICANE CENTER MIAMI FL AL042007
500 PM AST TUE AUG 14 2007

...DEAN MOVING WESTWARD ACROSS THE CENTRAL TROPICAL ATLANTIC...
(Miami is going to be hit. Bet on it.)

INTERESTS IN THE LESSER ANTILLES SHOULD MONITOR THE PROGRESS OF
DEAN. (People in Miami should start panicking now.)

DEAN IS MOVING QUICKLY TOWARD THE WEST NEAR 21 MPH...33 KM/HR...AND
THIS GENERAL MOTION IS EXPECTED TO CONTINUE DURING THE NEXT 24
HOURS. (This sucker is racing to destroy our way of life.)

MAXIMUM SUSTAINED WINDS ARE NEAR 40 MPH...65 KM/HR...WITH HIGHER
GUSTS. SOME STRENGTHENING IS FORECAST DURING THE NEXT 24 HOURS. (This is the big one.)

TROPICAL STORM FORCE WINDS EXTEND OUTWARD UP TO 35 MILES...55 KM
FROM THE CENTER. (No way this misses us. Buy lots of Heralds and watch channel 7 obsessively for the next month.)


See You In Court after we put up our shutters.

TRAFFIC TERRORS

UPDATE FOR TUESDAY. THE DEVIL MADE ME DO IT.

Our New ASAs got a rude welcome to the REGJB yesterday as the unexpected shutdown of the 17th street Bridge turned the morning commute into an exercise in frustration.

The City Of Miami ( motto: “professional planning night and day for the next earthquake” ) shut down the 17th street bridge while the 12th street bridge, while open, is under construction and the access roadways are limited. As it stands now, the only major access road into our area is the 12th street exit off of 836 which is one exit off of I-95. That has turned 12th street/12th avenue, with 12th avenue also feeding into the crippled 12th Avenue bridge into one big traffic nightmare.

Now under certain circumstances, this might be a good thing. We overheard several rumours about Judges who were so frustrated that they didn’t want to come to court. Less Judges can never really be a bad thing can it? For someone of them it was an actual opportunity to get through a Monday without making a reversible error.

So this traffic problem might well result in a lesser workload for the 3rd DCA.

Sort of like the unforeseen consequences of global warming.

Here are some alternate routes:

Coming from the South. You can stay on US1 instead of turning on 17th and take it to I-95. Then to 836. The problem is that you will get funneled into the traffic nightmare of 12th street.

Try turning on 27th Avenue and heading North to North River Drive which is also NW 20th Street. Turn right on 20th and this will essentially take you behind the Justice Building. Turn right on NW14th Street and you will then be able to access the parking lots on 14th and 12th avenue.


Coming from the North. If you usually take 1-95 to 836 to 12th Street, try the little exit NW 14th Street before 12th while on 836. You will have to act quickly, as the time on 836 is equivalent to a federal voire dire, eg., about 30 seconds, but it will take you north of the 12th street/12th avenue morass.

The Hialeah option. Not for the faint hearted. You basically have to take a bunch of roads labeled NW14th avenue/3rd street/SE99th court/Calle Generalissimo Rodriguez.

No matter which way you head they all funnel you to a street corner where you can purchase bags of limes and pastelitos while waiting for the light to change. I would venture to say that during the decades we have lived in Miami, we have actually spent more time in Europe then in Hialeah. And that was intentional.

A DEVIL OF A MURDER TRIAL.

Meanwhile, for those of you who got to work yesterday:

Satan was being prosecuted before Judge Adrien. He is representing himself pro se.

Outside of the fact that the lights kept turning on and off and the courtroom was shaken by occasional thunder, nothing unusual happened. Our own Tom Cobitz gets the call as stand-by counsel for the lord of darkness.

Not exactly Daniel Webster and the Devil, but if you have some spare time stop by the Third Floor and watch the proceedings.

Our favourite local scribe, Ms. Nesmith, reports that over the weekend the defendant had a change of heart if not a change in Deity. The Defendant is charged with murder, and the prosecution intends to argue that after the killing, the Defendant intended to cannibalize his victim. The Defendant has forsaken his desire to have the satanic bible at his table, and now intends to rely on the more pedestrian defense (no, not "the devil made me do it") that the police beat him until he confessed.

Yes, this trial promises to be full of astounding allegations.

You can read the article in the Herald HERE

And the Herald is having conniptions because there is a tropical storm in the Atlantic. It has been a slow news summer, and in the words of the Herald: “Nothing sells newspapers like our home town being devastated by a hurricane.”



Since the start of hurricane season we have the impression that the Herald seems to be begging for a disaster to hit us. As the late Miami Radio Personality Mike Renari used to sing


"I don’t want no hurricanes coming round here…”

WELCOME NEW ASAs

Ever sensitive to the lightest breeze, we have sniffed out that the new prosecutors have arrived!

Welcome.

You are about to begin a journey from law student to lawyer. You are being given great responsibility, for you are not just a lawyer; you are a prosecutor. Let us give you the worst case scenario. You will lose a case because some Judge granted a motion he or she should have denied. Then because it took so long, those witnesses you needed on your next case got bored and left, so when the Judge called that case you were forced to dismiss it because you were no longer ready. You now have a defense attorney who nobody likes trying to bamboozle you into waiving a mandatory jail sentence, and cop belittling you because he has been up all night, is tired, and can’t wait for you to get to his case. It is 3:30, you haven’t had time for lunch. It is the end of the month and your measly salary is down to a few bucks. At some point, hungry, broke, angry at being yelled at, frustrated in your attempts to prosecute, someone, maybe a pro se defendant, will tell you they are innocent. You will need will power, self control, and ability to compartmentalize your frustrations and anger, to treat that statement with all the seriousness that your job empowers you to do.

You are being entrusted with great power, and you are being given a great opportunity. The Dade State Attorneys Office has produced some of the great lawyers in Miami, Florida, and the Country. You have accepted a job that requires a sacrifice of salary and personal time. And yet, you competed against hundreds of other lawyers to get this spot. The best advice we can give you is that the best part is now starting. Squeeze every available drop of experience out of this opportunity.

While more than most people you prosecute are guilty, don’t forget that some are not. More importantly, you will need to learn the lesson of perspective. What do we mean by that? We mean that just because someone is guilty, and you can seek the most severe punishment for them, doesn’t mean you should. People lie, cheat, hit, hurt, and steal for more reasons than you can ever imagine. Perspective means working hard to get a conviction, and then seeking justice, not vengeance because some obnoxious defense attorney like us has made you work hard for that conviction. Understand the Constitution works only when we both do our job. Rolling over and pleading guilty just because you have a good case is not the way our justice system was meant to be. If we make you work for it, understand that you were chosen for this job because someone believed you had the ability to fight hard and win.

You will confront crossroads. Some colleagues and some police officers may someday to ask you to look the other way. A judge may put you on the spot and ask you a difficult question, where the truthful answer may damage a case, or deprive a victim of what you are sure is justice. Learn to recognize those moments for what they are: crossroads at which the fabric of what you are made of is revealed. Make the easy choices and you may end up regretting them for the rest of your life. A reputation earned over decades can be erased by one bad choice. Janet Reno always told her prosecutors to do the right thing. By that she meant always be honest and ethical and damn the consequences of what those honest and ethical choices may mean. Just look at the tough choices she made as Attorney General. No one could ever accuse her of playing politics.

So, welcome to our little world. In each class of new ASAs and PDs there are one or two people who find out that they have found the place where they want to make a life. It’s not a bad choice. But you don’t have to stay 20 years. Three good years of hard work and experience can set you on a path to legal success in whatever career you end up seeking.

And just remember that at some point, some inconspicuous humble lawyer may be watching what you say and do. Being on the blog can be a good thing or a difficult experience. It’s your choice.

Welcome. (And if you’re not from Miami, watch the Cuban coffee. Too much caffeine and sugar may seem like a good thing at the moment, but it will catch up with you. And watch out for those mojitos and models on South Beach. Too much of that can also lead to unintended consequences.)

See You In Court. Watching.

CHUTZPAH

OK, back to business.

The Third DCA slammed, and we mean slammed the Law Firm Of Adorno and Yoss in their lawsuit settlement of a case in which citizens sued the City to recover fees for emergency services.

To sum it up, and we have great difficulty with civil cases, (they give us a rash when we get too close) what appears to have happened is that Adorno's firm sniffed out a class action case with the promise of large fees.

BEFORE the class was certified, they negotiated a settlement for seven plaintiffs for 7 million dollars in which their firm would keep a measly 2 million dollars. Oh, and along the way, the rest of the tax payers the law firm was going to represent could be dammed, as the settlement was reached before the class was certified. Since Adorno and his firm had the settlement, they had no reason to care that the statute of limitations for the rest of us was about to expire.

Quicker than you can say “honey call the Mercedes dealership and order me that new SL500” Adorno stuck it to the rest of his possible clients and struck a deal. When the deal became public the City howled and moved to set aside the settlement and have the funds returned. The Circuit Judge agreed, and Adorno and his firm appealed.

Legal tip for Yoss and Adorno: Chutzpah is not a city in Wisconsin.

The Third DCA affirmed and a portion of the concurring opinion of new Judge Cortinas is below (he speaking about Adorno and his firm):

Unchecked avarice????

Plainly and simply, this was a scheme to defraud. It was a case of unchecked avarice coupled with a total absence of shame on the part of the original lawyers. The attorneys manipulated the legal system for their own pecuniary gain and acted against their clients’ interests by attempting to deprive them of monies to which they might otherwise be entitled. More unethical and reprehensible behavior by attorneys against their own clients is difficult to imagine.
Under these unique circumstances, the trial court properly set aside the $7 million settlement agreement based on breach of fiduciary duties to the class.

Here is the OPINION

And people wonder why we don't do civil work. Simple. We don't have the ethics required to screw a whole city of clients for 2 million bucks.


See You in criminal court.

SY'S FUNERAL

Here I am sitting in the corner of a dark bar and raising a glass or two to the memory of Sy. This is how Sy would have wanted to be remembered. I sent several private emails and asked readers to report on Sy's funeral, and here is the first one I received. So through the miracle of "mobile blogging" I post this email:


Rumpole: Here are the details from Sy's funeral. There was as expected a large turnout of lawyers, Judges, and at least one client in shorts and a tee shirt. The Reverend(???) who ran the ceremony did not know Sy and he invited anyone to speak on their memories of Sy.

Stan Blake started off on behalf of the Judges of the 11th Judicial Circuit. He remembered how when Sy would say that he was almost too choked up to talk about his case, Stan would invite Sy to have a seat and let the rest of the lawyers go and Sy could call the case when he regained his composure. Almost immediately Sy would recover and talk about the case. When Sy would close with his famous of line of "just once wanting to hear the word 'granted' in this courtroom" Stan would inquire if Sy had anywhere else to be. Upon being informed by Sy that he had several more courtrooms to go to, Stan would say "your motion to leave is granted."

A man whose name I did not get, but who knew Sy for 70 of his 75 years spoke. He and Sy grew up together in the Bronx, NY. He and Sy liked to joke that they were the oldest living former Cub Scouts and Boy Scouts. He recalled that Sy was drafted into the Marine Corps and sent "beyond the front lines in Korea." Sy saw terrible action and combat in Korea and was haunted by the horrors of war for the rest of his life.

Retired Judge Robert Dehl spoke that when he first became a Judge in 1964 Sy was already a courthouse regular. He remarked that he was one of the many people who were surprised at Sy's ability when he presided over a jury trial with Sy, which Sy won.

David Markus gave the best speech of the night. He and Sy shared office space together for many years. David told us that Sy was a published author who wrote and published short stories under a pen name. David spoke of the lessons he learned from Sy about law and life. David was poignant in remarking that while Sy may have rarely heard the word "granted" in court, he often heard the words "not guilty" after trial. David spoke about Sy's caring and concern for his clients and that Sy often represented people who could not pay. David also spoke about how modest Sy was. Sy wouldn't even save the wonderful article Susannah Nesmith wrote about him in the Herald, so David had it framed for him. And David recounted how genuinely touched Sy was to learn that he was included with 10 other giants in the Miami legal community when he was awarded the Miami Legal Legend award with such others like Janet Reno and Chesterfield Smith.

Judge Julio Jiminez who was partner with Sy for five years spoke. Judge Jiminez spoke about how one day he had a conversation with Sy about the need to raise their legal fees. A few days later Sy gave him 25.00 and told him to cover a case the following day. Julio asked what the $25.00 was for and Sy said "it's half the legal fee." Julio responded "Didn't I just have a conversation with you about raising our rates?"

Rumpole, Sy went out with love and laughter and it is all he could have asked for, and just what he deserved.

Rumpole says: Well done indeed.
You need not worry as I have secured a safe ride home.

GOODBYE OLD FRIEND

Today we say goodbye to a friend.

You will not soon be forgotten. Your kindness, humor and humanity have touched each one of us in a special way. We laughed at your jokes, marveled at your ability, celebrated your wins, and commiserated with you on your losses. Now we have lost you, and we must rely on each other to ease our pain. If we listen closely we can almost hear that familiar voice: "Hang in there kid. It will get better."

In the coming days and months and years ahead we will stand where you stood and will say "As Sy might have said Judge....." There will be smiles in court and knowing nods of the head.

Time will pass and those who follow us will hear about you. Stories will be told and re-told. Eventually time will move on and all of us who knew you will be in different places. Our names and yours will fade into the fast moving waters of history and time. Such is the nature of life.

But for now, we will gather tonight and laugh and cry and remember.

And for many years to come, it will often be said that in this place and time there was a man who was unique. He made us laugh and earned our friendship and respect. He did his job which was really his calling to the very best of his remarkable ability. And along the way he touched more lives than he could ever know.

Rest in peace Sy Gaer. You have earned a special place in our hearts.

The memorial service for Sy is this evening at the Mahi Shrine Temple at 7:00 PM. Viewing begins at 3:00 PM.

The Herald Article on Sy last year.

It was great that the Herald and our own little legal community banded together last December and honored Sy on his 75th Birthday, with a wonderful article written by Susannah Nesmith and a party at Tobacco Road, where Judge Stan Blake made a presentation to Sy on behalf of the 11th Judicial Circuit. This was all about the best of our legal world honoring one of our own who truly deserved it.

Since that time, Sy was named one of the original eleven Legal Legends of Dade County by the 11th Circuit Historical Society. The award will be presented in November, but according to David Markus, Sy did receive the letter and was very proud.

It is all together fitting that we re-run the wonderful article written by Ms. Nesmith:

By SUSANNAH NESMITH

Attorney: I'm here on a mission of mercy for this poor innocent child, your honor.
Judge: How old is this 'poor child'?
Attorney: He's 23 years old, your honor . . . a babe in the woods.
Judge: If I recall, once you reach 18, you're not a child anymore.
Attorney: I have suits that are older, your honor.
Judge: You have speeches that are older. I've heard them all Mr. Gaer. Motion denied.

Ladies and gentleman, Sy Gaer, a little old man who is something of a giant in courthouse circles. Here is a lawyer who turns routine hearings into comedy theater, but also regularly wins trials, even though he refuses to prepare.

His lines are legendary in the Justice Building.
To Gaer, every case is a potential "miscarriage of justice, " all prosecutors are "persecutors" and every client a "poor innocent child" no matter how old, or how heinous the alleged crime.

He's been known to comment that a certain prosecutor had "his diaper wrapped too tightly." Gaer, 75, even has a favorite line for judges: "Just once before I die, I'd like to hear the word 'granted' in this courtroom."

"He's a throwback, almost a caricature. He practices law as it was practiced four decades ago, " said Circuit Judge Stanford Blake.

All humor aside, young prosecutors quickly learn not to underestimate the Korean War veteran from Queens.

"They see this bumbling Barney Fife type guy, and then he does a brilliant cross examination and they're shocked because they thought he was just a court jester, " said Circuit Judge Diane Ward.

For all his bombast in the courtroom, Gaer is humble in the hallway.
"I'm just a crippled, bent-over old man who can barely catch his breath, " Gaer said on a recent day.

He has the breathlessness of emphysema, the slow shuffle of a herniated disk and the paper-thin, liver-spotted skin of a man who has lived a long time. His suits hang crookedly on his thin, stooped frame.

Last year, he fought off colon cancer. But while he may be slowing down, Gaer shows no signs of giving up.

He'll do 15 hearings in a morning - a dozen more than most lawyers handling major crimes would ever schedule in one day. Gaer calls it "volume business." He charges less than most and handles more cases.
Gaer says he can do it because he doesn't prepare for trial like other lawyers do.

DIFFERENT APPROACH
"I don't take depositions. I don't visit them in the jails. I don't take collect calls."
Instead, he goes to court armed only with a little black book, where he scribbles his case information in tiny, left-handed script.
"If he takes depositions, he has to tell us his angle, " explained veteran prosecutor Susan Dannelly. "What better way to spring a witness on us. Of course, not everybody can pull that off."

"Trial by ambush, " says Circuit Judge Leonard Glick. "He will find a little hole and expand it a little larger, then find another one and expand that one and before you know it, the entire thread of the case has come unraveled."

Prosecutors Tama Koss and Carolina Corona were ambushed by Sy this month. The charge was attempted murder of an 83-year-old man. Gaer's client was arrested driving the man's car hours after the beating.
Gaer entangled the lead detective in his own department policies, asking him why he didn't tape the victim picking his client out of a photo lineup.
The cop said that's not normal procedure. Gaer had him get the police department policy. It says photo lineups should be recorded.

"Here we are in the year 2006 when things are so technologically advanced and you don't have a tape recorder or a video recorder?" Gaer asked.
"No sir, " Det. Magdiel Armenteros responded.
"Wouldn't it be fair to document those sorts of things?" Gaer continued.
"It is documented in my supplemental report, " the officer responded.
"But isn't it true that a police officer can put anything he wants in a report, that he can get cute with the facts if he wants and no one will know?" Gaer asked.
"No sir, there's nothing cute about my job, " the officer replied petulantly.
After questioning why there was no DNA or fingerprint evidence, Gaer had given the jury reasonable doubt.
His client was acquitted of attempted murder and convicted only of auto theft. He was facing 30 years in prison but got just 10.

"What can I say? Sy's a hero, " Circuit Judge Julio Jimenez said after trial. "I thought this case was a slam dunk."
Jimenez worked in Gaer's office in the early 1980s, a time he recalls as exhausting.

'HE'S SEEN IT ALL'
"Sy's like a professional gambler, " he said. "He knows all the possible combinations that might come up. He's seen it all before."

So why keep doing it?
"I find it mildly amusing, " Gaer said one day, sitting in his office a few blocks from the courthouse. He's been there for years. He redecorated in 1977 and hasn't seen a need to change the orange-and-cream shag carpeting on the wall.
Though he's had several high profile cases over the years, he tends to shun the media. He adamantly refuses to discuss any but the barest details of his personal life.

Born and raised in Queens, where his father was a taxi driver, he went to school on the GI Bill - first Queens College, then the University of Miami Law School.
He's been married but won't say how many times. Circuit Judge Scott Silverman was briefly his stepson, back when Silverman was 4.
"Every judge who's in that building now, the day they walked in, Sy Gaer had already been there 10 years, " Silverman said. "He came with the building."

Gaer was overwhelmed and a bit embarrassed by all the attention he got on his birthday. Three different judges interrupted court to sing Happy Birthday.
The Miami-Dade criminal defense bar put on a party that night at Tobacco Road that drew a few hundred Justice Building regulars.
"I can't believe this turnout, " Gaer said. "It's not like I'm Mother Teresa or something. I just made a good living."

Lawyers and judges traded Sy stories. Like the one about the young prosecutor who carts a box of files into the courtroom, ready for trial. Gaer walks in without even a briefcase. He asks the prosecutor if he can borrow a couple of pieces of paper.
Gaer won.
"After that I used to bring in extra pads for Sy, " Assistant State Attorney Philip Maniatty recalled.

State Attorney Katherine Fernández Rundle arrived with a big bear hug for Gaer: "He was one of my first teachers. I used to watch him talk to jurors. It was impressive what he could do with them."

Circuit Judge Reemberto Diaz said Gaer "understands the psychology of a jury."
"People think he wings it. He doesn't. He knows the law better than anyone in the building probably, " said defense attorney Phil Reizenstein.

Gaer is the first to point out he doesn't win anywhere near all of his cases. Asked why he didn't seem to have any enemies in a building built on confrontation, he said: "I had one once, but he's dead now. I guess I've outlived all my enemies."

WHAT COLLEAGUES SAY ABOUT SY GAER * Assistant State Attorney Philip Maniatty: "He will go through an entire trial and refer to his client by the wrong name and the jury will acquit anyway." * Defense Attorney Richard Sharpstein: "He kicked my a- as a young prosecutor a couple of times. I thought, 'this guy hasn't taken a single deposition.' " * Circuit Judge Julio Jimenez, who once worked with Gaer : "There are people who can't afford Roy Black, but they want to hire their own attorney. He's told me before, 'People are proud. There's no better feeling for some of these guys than to be able to pay for their own lawyer.' " * Assistant State Attorney Bill Kostrzewski: "There's so many curmudgeons out there that are real curmudgeons and nasty people, but Sy's a really nice guy." * Circuit Judge Diane Ward: "He represents people who no one has ever fought for before. When Sy is fighting for somebody, the whole courtroom is listening. That's a nice thing for somebody who's scared." * Assistant State Attorney Kionne McGhee: "I saw him beat down a colleague of mine. I mean, beat down into the ground." * Circuit Judge Norman Gerstein: "We used to joke at one time that he had as many cases as the Public Defender's Office."

SY GAER

Sy and "Lurvey darling"


SY GAER’S funeral will be this Thursday at the Mahi Shine Temple.
Viewing starting at 3:00 PM, with a service from 7:00 PM to 8:00 PM.


FLAGS AT HALF STAFF
Thank you to Judge Farina who did the right thing and ordered the flags at the Justice Building to be flown at half staff for the rest of the week.


All the comments have been wonderful. Here are some of our favourites:

Mr. Sissleman starts things off with a fact we did not know: Sy was injured in combat during the Korean War!:

Sy was the the best. Most don't know he was a wounded combat vet, bayanetted (sic) by the chinese in the Korea. A tough guy w/ always a kind word and a how ya doing kid. He was our Perry Mason & Matlock. We Will miss you greatly Sy,
D. Sisselman


Bill Matthewman said...
Sy cross-examined me when I was a young Miami cop. I would have rather had root canal. After I left Court humbled (and pissed), the prosecutor told me, don't worry, that's just Sy. Since then, as a defense attorney, we had cases together and I grew to admire him. We became friends, and I'll miss the old guy. If there are trials in Heaven, he'll announce ready upon entering the Pearly Gates.


This anonymous poster speaks for a lot of us, including yours truly:

Anonymous said...
I'm a better lawyer for having known you, and you didn't even know it.
Thanks Sy.


lurveydarling said...
The reason I became a lawyer was because of Sy. Summer internship from UF in 1983 with Marco Loffredo (another great guy). Saw Sy's show one day and found him everyday that summer and followed him around. He made it look so fun. Many years later I asked him how he did it everyday. He raised his hand slightly above his shoulder, palm to the heavens and said "its all right here, in the hand"

You always expect the legendary to be around forever. I prosecuted cases against Sy, later he appeared before me in court. He never changed, never had a client who wasn't "poor and misunderstood".Most folks didn't know that he was a decorated Marine during the Korean War, or know of his pro bono work for some of the least of our bretheren, or know of his kindness to attorneys just starting private practice. Sy wasn't one to brag.He was truly a good man.Rest in peace, my good friend.Your "sweetheart".Katie Pooler


Here are some snippets collected from some of the comments we received:

His humor, his ability to laugh at himself and the honest appreciation he had for those around him will be missed. Sy,if there is a heaven and you approach the pearly gates, the first words out of G-d's mouth will be "I have this angel who has a problem, can you help him out."

I can safely thank almost every attorney in the building for giving this man the appreciation and respect he deserved in life - here's a case where each of us derived a benefit at no cost, other than stepping back a moment to watch history in the making. Good for you Sy, most people don't succeed without appearing to try too hard, and even fewer gain the praise of competitors while the war is still being waged. You had our gratitude and life, and its safe to say your memory will live on as a kind smile for whenever a hint of your existence passes through the building.
He always brought a smile to my face when he approached the podium in court to talk about his "poor innocent child" of a client. I will also miss how he greeted me with a "how ya doing kid?" every time he saw me.

Always a kind word or a happy greeting. Never an empty glass if Sy was around. A cunning fox in trial, He had incredible passion for this work we do and the passion was real, you cannot fake it, they will know.

The number of lives he impacted can partially be summed up by the fact that children were named after him by the fathers he saved from life in prison for transgressions made attempting to overcome obstacles to success that almost none of us have faced and almost no young prosecutor can fathom which is why so many prosecutors have mourned his passing because he helped teach them compassion for the poor and oppressed and not scorn and he did it through humor


Yes, we all loved Sy and his shtick. But having tried cases against Sy, he was a damn good and tenacious trial attorney. He also knew when his client was getting a good or raw deal and advised accordingly. I was able to resolve a truly tough case due to Sy's honesty and candor both with myself and his client.

To borrow from Kissinger's eulogy of Nelson Rockefeller--To think that Sy Gaer is dead is both shattering and nearly inconceivable. One thought him indestructible. We have lost a giant. Rest in peace--

His black book should be encased in a memorial in the lobby, like the Declaration of Independence.

Informations were "declarations of war," and every client's file was the "tear stained one."

Three weeks ago Sy had been named a “Legal Legend” in the inaugural class of 12 honorees by the 11th Judicial Circuit Historical Society. He was to be presented this honor this fall at a dinner downtown with 11 other "Legends." The committee was made up of civil and criminal practitioners and state and federal judges, all knew or knew of Sy. It was amazing to hear civil lawyers talk about him.


The Herald’s article by Ms. Nesmith is HERE


Please make sure you read all the wonderful comments under the original post about Sy. Every one of them tells a wonderful story. This man was a gem and is really going to be missed. It is often said, but not often true- however in this case it is- the REGJB will just never ever be the same.

HR.

SY GAER HAS PASSED AWAY

UPDATED WITH FUNERAL INFO BELOW:

THE END OF AN ERA.

THE PASSING OF A LEGEND.

A GREAT MAN AND A GREAT LAWYER.

FUNERAL DETAILS TO BE POSTED WHEN WE LEARN OF THEM.


FROM JUDGE BLAKE'S EMAIL:


It’s with sadness that I wanted everyone to know that attorney, Sy Gaer, passed away this morning. Sy was a special person who will be greatly missed by those of us who saw him in the REGMJB daily. Our “most important case” on the calendar, as Sy would always say, will no longer be there. We will miss his wit and his willingness to try any case at any time in defending his clients. David Markus will be finding out later today the details of any service. I am glad that before his passing, Joe Farina had a proclamation honoring Sy for his dedication and service to the Criminal Justice system in honor of his 75th birthday. Sy was touched that so many of us recognized him for all the years of service and we will all miss him and the smiles he brought to our faces.

Stan Blake

From an email we received forwarding Judge Blake's email:

Judge Blake advises that Sy’s funeral details are:

A viewing will occur at the MAHI SHRINE TEMPLE near the REGMJB on THURSDAY, AUGUST 9TH BETWEEN 3 P.M AND 9 P.M. A SERVICE WILL OCCUR ON THE SAME DATE FROM 7 P.M.—8 P.M.

ANOTHER INNOCENT MAN. ANOTHER FAKE BLOGGER

A murder in NYC outside the Palladium night club. Two men are arrested and convicted after trial.

Ten years later, an NBC producer is doing a story on the Bronx Homicide Task force, and he asks a detective if he takes his job home with him. The detective replies that he does not, except for one case that still keeps him up at night. So begins the long journey of NBC news producer Dan Slepian, who in 2002 takes that comment by the detective and investigates the conviction of two men, who by now almost everybody believes are innocent.

The forewoman of the jury saw an early part of the documentary and became convinced that she was involved in a “travesty of justice” that sent two innocent men to prison.

Read this quote from the NY Times Article HERE , and may we just say that we would not believe this if we didn’t read it ourselves:

One of the most dramatic moments in the documentary was filmed just a few months ago. On camera, Daniel Bibb, an assistant district attorney, said in an interview that he believed the men were innocent, even as he argued in court to keep them in prison — because, he said, he was under pressure to do so. Mr. Bibb did not return telephone calls seeking comment.

Rumpole says: This just can’t keep happening. Life is too precious. When are people who are given the responsibility for prosecution going to start taking responsibility for mistakes, and stop prosecuting innocent people? We are not saying it happens a lot, however, once is one time too many, and we have reported close to a dozen stories about this in the two years we have been writing the blog.

Enough is enough.

FAKE BLOGGER REVEALED

Something about this STORY, and we can’t really put our finger on what it is, caught our attention.

SAN FRANCISCO, Aug. 5 — For the last 14 months, high-tech insiders have been eating up the work of an anonymous blogger who assumed the persona of Steven P. Jobs Apple's chief executive and one of the world’s most famous businessmen.

The mysterious writer has used his blog, the Secret Diary of Steve Jobs, to lampoon Mr. Jobs and his reputation as a difficult and egotistical leader, as well as to skewer other high-tech companies, tech journalists, venture capitalists, open-source software fanatics and Silicon Valley’s overall aura of excess.

The acerbic postings of “Fake Steve,” as he is known, have attracted a plugged-in readership — both the real Mr. Jobs and Bill Gates have acknowledged reading the blog fakesteve.blogspot.com. At the same time, Fake Steve has evaded the best efforts of Silicon Valley’s gossips to discover his real identity.

Meanwhile, on the other side of the country, Daniel Lyons, a senior editor at Forbes magazine who lives near Boston, has been quietly enjoying the attention.

Rumpole says: and our number has dwindled by one.

See you in court, quietly enjoying the attention.

755!!!!!!

People will come, Ray. They'll come to Iowa for reasons they can't even fathom. They'll turn up your driveway, not knowing for sure why they're doing it. They'll arrive at your door, innocent as children, longing for the past. The one constant through all the years, Ray, has been baseball. America has rolled by like an army of steamrollers. It's been erased like a blackboard, rebuilt, and erased again. But baseball has marked the time. This field, this game, is a part of our past, Ray. It reminds us of all that once was good, and that could be again. Oh, people will come, Ray. People will most definitely come

IN THE END ....A BIG MURDER CASE

Miami.

Land of SOBE;tall slinky euro models. Gyms, tanned bodies, 6 pack abs.

All of that meant nothing to Manuel Cordero. Give him an ample bottomed rubenesque Woman any day of the week. And in the end, his love of rear ends cost him his life.

David Ovalle of the Herald has done it again, as he …ummm…
uncovers
….the murder of Manuel Cordero who was killed by the boyfriend of a well endowed woman who was going to Cordero’s home for a photo session.

The article reports that ASA Laura Adams helped police get the warrant and that Perry Bailey, the aforementioned apple bottomed affection of Cordero’s eye, is cooperating.

RICHARD GERSTEIN

Known as the Boss before Springsteen was playing the Stone Pony, Gerstein was the State Attorney before Janet Reno. A man admired for his loyalty to his assistants and ex-assistants. And if you know many who worked for Gerstein you know that that loyalty is a two way street. And yet, there were rumors, whispers, and unsubstantiated allegations. In the aftermath of our post on Joe Gersten, there has arisen a hue and cry for information on the man whose name graces our place of business.

Come on you old time ASA’s. Now is the time to write your memories of the man who was criminal law in Miami for decades.

What many people may not know was that Gerstein and the Miami Dade SAO were involved in the investigation of the Watergate break in. Pretty heady stuff for a small southern prosecutor's office. There are probably a thousand Gerstein stories out there and we'd like to hear a few.

MICHAEL BIENSTOCK

ASA Michael Bienstock passed away the other day. Mr. Bienstock ran for County Court Judge in the last election. Mr. Bienstock had spent his career as a prosecutor setting up and then working in the Child Support division.

We never met Mr. Bienstock but the Herald article HERE reported on the over one hundred thousand children who benefited from Mr. Bienstock's work. Although he died way too early at 59, Mr. Bienstock leaves a legacy of concern and action on behalf of children. What a wonderful way to be remembered.

Here is the comment Judge Joe Fernandez left yesterday:

Michael was a gentleman during our race. The only time we saw each other after the election, we shook hands and he was extremely gracious. Besides wanting to become a judge we had at least one other thing in common--a loving and supportive family.

I know they are missing him terribly.

Joe Fernandez

HISTORY REPEATS ITSELF

We are nothing if not the unofficial historian of our REGJB legal times. That is why this little innocuous article by David Ovalle of the Herald caught our attention.

BY DAVID OVALLE

When a man beat him up over a drugs-and-hooker debt, Marco Sostizzo got even -- by calling police claiming the dealer carjacked his Mitsubishi Galant, authorities say.
But it wasn't true, Miami-Dade cops say. They arrested Sostizzo for making a false police report.
It happened Tuesday at 1300 NW 79th St. Sotizzo, 25, told a Miami-Dade cop an unknown man wearing a Miami Heat jersey socked him in the eye, ear and neck, took his keys and drove off in the Galant.
But Miami-Dade Detective James E. Dixon unraveled the story.
Sostizzo, of Sunrise, had been cruising the neighborhood on a binge when the unidentified man attacked him over the debt. He knew where his Galant was but inexplicably called police instead, police said.

Pull up a chair children and let uncle Horace tell you a story.

It was a different time.
Janet Reno was our State Attorney, and crack had ravaged our community for over a decade.
A Governor from Arkansas was making waves in the Democratic primaries, while his Brother –in-Law Hugh Rodham laboured in obscurity at the PD’s office. Joe Gersten was a Miami Dade Commissioner with a swanky home in Coral Gables, a fancy Mercedes, and unbeknownst to the electorate, a taste for crack and loose women.

All of that and more was about to change.

April 29, 1992: Wasted bodies and lives and run down crack holes littered Biscayne Boulevard from 36th street to 79th street. Most Miamians just locked their doors and rolled up their windows when they had to drive by the neighborhood.

Enter Commissioner Joe Gersten who reported to the police that his Blue Mercedes Benz had been stolen from his home. The car was soon located and one Kenneth Elswick, with an arrest record for dealing crack was behind the wheel. Elswick was arrested for grand theft auto. However, Elswick had a card to play: 2 cards actually- prostitutes Claudia Lira and Tracy Sheehan who had helped Elswick rob Gersten as he “partied” with Lira and Sheehan in a crack Den on NE 31st street. The police located other witnesses who saw Elswick drive the Mercedes away from the crack den, not Gersten’s home, and suddenly before you can say “G-day Mate” events unfolded at a pace rivaling the current Broward Courthouse fiasco.

Reno subpoeaned Gersten but “silent Joe” refused to speak. It was a classic perjury trap: say the car was stolen from his home, and face a perjury rap. Say the car was taken from the crackhouse, and face a filing false police report charge and an explanation of what he was doing holding an open house for his constituents on NE 31st street.

Circuit Judge Amy Dean ordered Gersten to speak. Gersten refused. Dean held him in contempt and Gersten did 26 days at TGK. The Third DCA set a bond when they agreed to review Dean's order, and Gersten took off. First Hawaii, and then Australia, where he has remained ever since: the most famous fugitive since Dr. Richard Kimble, although there is no one-armed man behind this mess.

The lesson behind all of this is that human nature is a remarkable thing. Despite all the crazy “you’ll never believe this one” stories, the fact is that if you hang around long enough, almost any situation will repeat itself. Call it Rumpole’s First Law Of Clients- no client has done something so stupid that some other person hasn’t already done it.

So Mr. Marco Sostizzo, should you wander by chance into our humble offices, be advised that we have some experience with your situation.

G-day mate.

PS: A reader asked for a history lesson on Richard Gerstein. Many others are more qualified than we are to help. Please email us your thoughts on Mr. Gerstein so we can bring our young readers up to speed.

A SINCERE APOLOGY

ITEM: Attorney General “I cannot recall my first name at this moment” Gonzales has admitted that his testimony before the Senate Judiciary Committee was confusing.

In his two-page letter to Senate Judiciary Chairman Patrick Leahy of Vermont, Gonzales sought to clear up the confusion.

"I am deeply concerned with suggestions that my testimony was misleading, and am determined to address any such impression. Both the President and I agree that we could care less what you think. Furthermore, what don’t you understand about the word NO? I sincerely hopes this clarifies my testimony as I am committed to working with you. " Gonzales wrote in the letter, a copy of which was sent to the panel's top Republican, Arlen Specter of Pennsylvania.

"I recognize that the use of the term 'Terrorist Surveillance Program' and my shorthand reference to the 'program' publicly 'described by the president' may have created confusion. Perhaps I should have referred to the program as the “Spy on everyone” program or the Legal Intelligence American Review program which we in the White House often refer to by it’s initials. " Gonzales wrote.

“In any event, in order to avoid further confusion, please let me reiterate that your committee will get the answers it wants when hell freezes over, and that I and the President are both committed to fully cooperating with the committee, the American Public, and you personally."

Sincerely,
Your new best friend,
“As soon as I recall my first name you’ll be the first to know” Gonzales.

PS. Next week, based on the imminent terrorist threat and our chartreuse/brown/green alert status, we will be asking the Supreme Court to disband Congress and cancel the upcoming Presidential elections until Osama Bin Laden is caught. I know I can count on your support.
?G

BEHIND THE SCENES

Many people are curious as to the exact process that goes into a Rumpole reply to a particularly stupid comment. Therefore, we decided to give you a peek behind the scenes and review the unedited text of a Rumpole response to an email, complete with our thought process.


In regard to the post the other day that mentioned a case before Judge Schlessinger, there were a few comments in the comments section, one of which was negative about Judge Schlessinger.

Then we received this comment:

Anonymous said...
Again, you let ridiculous nasty comments... this time, re: John Schlessinger through the so-called moderation. There's nothing wrong with John. I've appeared in front of him and his wife since day one; he is fair and just and he carries himself with aplomb.


Rumpole to ourselves “Don’t these idiots get it? I don’t write the comments, and I don’t edit them. How can I convey my anger at this comment?”

Dear idiot? “No, a little to strong.”

“Dear cretin”

“No, I think I need a thesaurus. Hmmmm…”

(Rumpole logs on to Thesaurus.com)

idiot
noun
One deficient in judgment and good sense: ass, fool, imbecile,jackass, mooncalf, moron, nincompoop, ninny, nitwit, simple, simpleton, softhead, tomfool, Informal: dope, gander, goose. Slang: cretin, ding-dong, dip, goof, jerk, nerd, schmo, schmuck, turkey. See ability.


Rumpole to ourselves: “Wow. Props to myself with the “cretin” pull. Had no idea. “Mooncalf" is a bit too obtuse. “Schmuck" too crude. Going to go with the old favourite.”


Dear Jackass:

Just what don’t you get about this blog in particular and blogs in general? Someone doesn’t like Judge Schlessinger and they posted their feelings. And you want me to censor that? I happen to like Judge Schlessinger. He was a very fine Assistant US Attorney and is doing a great job as a judge. But those are my thoughts. Should I run a blog that only posts comments that I agree with?



Here’s a scenario for your dimwitted mind to ponder as you count your toes tonight.



Lets say there is a Judge you love. Call her Judge A. And lets say I hate that Judge. And lets say you decide to write a long glowing comment about your favourite judge. Then you get someone who can read your writing in crayon and have them post it on the blog for you. And because I don’t like Judge A, it doesn’t get posted in the comments section. How would that make you feel? Kinda sad and mad, right? See how it works now?



Someone wrote something critical about Judge Schlessinger. Your job, should you choose to accept it, is to leap to his defense and try and compose something positive. In this particular situation something tells me that the result might make Judge Schlessinger think that “with friends like these…who needs enemies?” But you get the point right?



A free discussion of the issues of the REGJB with as little moderation as possible. Almost anything goes, except for what are now well known Rumpole Rules.

Anyway, best of luck with your ABC’s and those new crayons."



Rumpole says: Really. Is there any support for me to moderate comments and only post those I agree with? Actually, don't respond to that because I don't care. I like things the way they are. I do not want to live in a world where there are only people who agree with me (although things would be a hell of lot more efficient, I can tell you that.) The blog is what it is and most people seem to like it.



Maybe it's the heat that has me so cranky.



Never did like Pat Riley that much.

REAPING WHAT WE SEW AND FAINTING GOATS

UPDATE!: A family member of the victim in the "Moldof" case writes us an email. See below for the full email.

A longtime and careful reader of the blog was kind enough to alert us to this article from Manatee County about 11 suspected gang members who were arrested after a five month investigation. One problem: the Court is having trouble rounding up eleven lawyers stupid enough to take the case for the new flat fee of $2,000.00.

Go here to read about WE’RE NOT GONNA TAKE IT legal style.

Oh Well.

Moldof Morass.

Here is the Herald article
reporting on the conclusion of the investigation of Broward lawyer Hilliard Moldof who was accused in 2003 of tampering with a witness in a murder prosecution by paying the witness $100.00 . The article reports that the Dade SAO, who was appointed to investigate the case reached a “settlement” with Mr. Moldof wherein Moldof agreed to a statement of facts in which he acknowledged that his actions could be the basis for charging him with a felony. The case was then referred to the Bar and the Dade SAO took no further action, deeming their settlement a type of deferred prosecution.

Rundle's office has said Moldof wasn't charged because his offense was nonviolent, and he had a clean criminal history. Prosecutors told Bar officials they gave Moldof ``a break.''

The hitch is that the Dade SAO apparently believed Moldof would get a six month suspension, and instead the Bar has ordered an admonishment. The Dade SAO is not happy.

The Dade SAO has come under their fair share of criticism on these pages but not today.

Like it or not, what the Dade SAO did was exercise prosecutorial discretion. They decided not to proceed with a prosecution that they technically could have proceeded with because they believed that it was the right thing to do. It did not work out as they planned in this circumstance, but that should not dissuade them from proceeding in this manner in the future. We need more of this type of thinking, and less of the type of concrete thought process that we see too often in our courts these days.

UPDATE: After the post ran this morning, we received this email, which we print in full with full permission of the author:

I agree with 90 percent of your post, and I think you'll agree with my 10 percent after you read this.

Miami SAO had originally written, in a July 2005, document, that it was going to deferred prosecution, but reserved the right to turn around and prosecute if the Florida Bar didn't come through with at least a six-month suspension. The final agreement included no such provision; it was taken out. (Which side do you think proposed that?)

Rundle gave up her "hammer" in the case -- that Moldof get at least six months -- and once she gave that crack to Moldof's lawyers, they did a very good job of running with it. Give them credit.

It is my opinion that Rundle erred by doing that. Agree or disagree?

Also, FYI, on of Oct. 15, 2004, Michael Von Zamft wrote a letter to Michael Dutko, Moldof's attorney, saying the case was going to the Broward Grand Jury. Sometime afterward, when Moldof hired Arturo Alvarez to represent him, Miami SAO came out with the deferred prosecution agreement.

Feel free to post any or all of this

Nick Sortal. Brother of victim

ROBERTS: THE FAINTING CJ


We are happy to learn that the CJ is feeling better. Doctors are a bit puzzled as to what is causing this. We modestly propose our own diagnosis: The Fainting Judge syndrome.

Here is the article on the famous
FAINTING GOATS”
of Tennessee:

Fainting goats have bulgy eyes which are very unusual and which distinguish them from other breeds. They also have very long ears that stand out to the side of their head. They are a very calm animal and make excellent pets.They are a herding animal, and should therefore be kept with at least two or three of their own kind.


The Fainting Judges of DC:

“Fainting Judges also have bulgy eyes which distinguish them from other Judges. They are usually very calm and make excellent advocates of the conservative legal agenda. They are excellent at herding other Judges into a 5-4 majority and therefore are usually found with at least 4 others of their own kind.




Goats of a feather can usually be found together.

See You in court, avoiding judges with bulging eyes.

CHIEF JUSTICE SUFFERS SEIZURE

BREAKING BLOG NEWS


CHIEF JUSTICE JOHN ROBERTS SUFFERS SEIZURE AT HOME.
CURRENTLY IN HOSPITAL.
DETAILS TO FOLLOW.

FBI RAIDS HOME OF ALASKA SENATOR TED STEVENS.

Details to follow.


UPDATE ON CJ ROBERT'S CONDITION (9:00 pm.)

This has apparently happened before with no lasting side effects.
The CJ is in a hospital, conscious and alert, and resting. There is apparently no explanation for this happening.

The CJ fell and hit his head. After regaining consciousness he asked for some opinions he wrote in the last term. "I wrote that???!!!!" The CJ is reported to have said before fainting again.

RUMPOLE TACKLES VIRGINITY

Judge John Schlessinger ruled on Friday that the confession of a fourteen year old boy is admissible and can be used at trial.

The Herald reported:

Hernandez's attorney, Richard Rosenbaum, had argued that his client's lengthy videotaped confession should be thrown out because Hernandez, then 14, was too severely mentally ill to make a rational decision about his right not to talk to police.

The teenager stands accused of stabbing and killing another boy at Southwood Middle School.

The circumstances of this confession and the outcome of this tragic case bear watching.


The Herald also reported HERE
the Death of attorney Steve Ellison. Before working for the Dade SAO and the Monroe SAO, Steve Ellison was a Metro Dade Officer and a homicide detective. Many attorneys in the REGJB knew Steve Ellison as either an outstanding detective or a fine attorney. We note his passing with sadness.


President Bush actually had a chance to run the country with VP Cheney out of action having his pacemaker tuned up. And yes, in order to have a pacemaker, you must have a heart.

Kudos to the career Justice Department lawyers speaking out against Attorney General “I can’t recall my first name at this time” Gonzales. The NY Times reported HERE
that
Daniel J. Metcalfe, a lawyer who began his government career in the Nixon administration and retired from the Justice Department last winter, said morale at the department was worse under Attorney General Gonzales than during Watergate.

And

John S. Koppel, who continues to work at the department as a civil appellate lawyer in Washington, wrote this month that he was “ashamed” of the department and that if Mr. Gonzales told the truth in recent Congressional testimony, “he has been derelict in the performance of his duties and is not up to the job.”


And finally, while she does not appear to be our long lost dear Portia of the blog, this cry for help arrived early Friday evening:

Rumpole,

In your last post, you said you were "feeling unfulfilled". Well cheer up! Here are my current stats: 30 years old, a virgin and I will have to spend my entire weekend working on a DUI Manslaughter.

A female defense attorney.

And eager to help, we replied:

5:44- my dear unfulfilled colleague. Unfortunately your condition cannot alleviate my condition, as the causes are vastly different. However, tis a noble cause you are engaged in. (Defense not virginity). I am qualified to give you advice on the former, not the latter. However, I wish you the best of luck in both.


Knowing the altruistic nature of our dear readers, we can’t help but think that help may be on the way for our new Portia.

See You In Court.

LIGHT MY FIRE

In the limp aftermath of the most notorious prosecution in Florida involving sexual organs since the Miami Dade SAO secured a conviction against Jim Morrison of the Doors, the Broward Masturbation case has left us feeling, well, unfulfilled.

The Defendant was convicted which is embarrassing as it is unfair. The Broward SAO and one particular female BSO Officer remain steadfast and unbowed in their attempt to rid the world of self gratification. They may as well use tweezers to clear Florida beaches of sand while they’re at it. Perhaps the Broward SAO’s lack of prosecutorial discretion, which those of us in the criminal defense community have known about for years, now on public…ahem.. display for all to see, may be the first chink in the armor of long time State Attorney Mike Satz.



Meanwhile, in Dade County, Corrections officials were shocked! Shocked ! to learn that the man accused of killing the bondsman trying to apprehend him, was left in a Van in sweltering heat for hours at TGK after returning from court. The Herald article is HERE


And finally, the Director of the FBI, Robert Mueller, gave testimony to the House Judiciary Committee, in which he, in effect, called the Attorney General of the United States a liar.

The Attorney General testified earlier in the week that when he was White House Counsel, he and his top assistant decided “on the spur of the moment” to race to the hospital bedside of then attorney General John Ashcroft to “bring him some flowers and candy, and if he felt up to it, have him renew our program allowing the government to spy on its citizens. But only if he was really feeling jolly.”

Muller has never adequately explained why he felt it necessary to order FBI agents to prevent Gonzalez and Bush henchman Andrew Card from removing deputy attorney General Comey, who was also present, from Ashcroft’s room.

“Gonzalez and Card love to sneak candy” said an unidentified White House spokesman. We believe Director Mueller was justifiably concerned that those two knuckleheads would chow down all of Ashcroft’s candy. You know how those guys get when their wives let them out at night.”


Somehow, we just don’t buy it.

The administration would be well advised to remember that it's members do not fair well when charged with perjury. There is a growing belief that the Attorney General may well have walked himself into a perjury trap before the Senate. With the federal guidelines being as unfair as they are for obstruction of justice, he apparently has little to worry about in terms of prison time.

Broward is concerned about the front side of what’s in a person’s pants, while the Attorney General of the United States acts like the backside.



See You In Court.

KEEP IT COMING LOVE

CROMARTIE, 4D05-1568 (Fla.App. 4 Dist. 2006)

STATE OF FLORIDA, Appellant, v. XAVIER CROMARTIE, Appellee.

No. 4D05-1568.

District Court of Appeal of Florida, Fourth District.

September 27, 2006.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, John Murphy III, Judge, L.T. Case No. 04-22513 MM10A.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant.

No appearance for appellee.

STONE, J.

Cromartie, a county jail inmate, was masturbating in a jail cell while looking at deputy Francine Smith. She observed him and ordered him to stop. Instead, he continued. The jail cell was in the jail infirmary and was open to view.

Cromartie was charged with violating section 800.03 Florida Statutes, covering exposure of sexual organs.[fn1]

The trial court granted a motion to dismiss, reasoning that a police officer cannot be an offended party as to the exposure of sexual organs and that a jail cell is not a public place, relying on State v. Silvers, 7 Fla. L. Weekly Supp. 592 (Fla. 17th Cir. July 31, 2000).

Section 800.03 Florida Statutes, reads:

800.03 Exposure of sexual organs — It is unlawful to expose or exhibit one's sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose. Violation of this section is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A mother's breastfeeding of her baby does not under any circumstance violate this section.

The question is whether Cromartie's exposure was "in public," "so near [the private premises of another] as to be seen from such private premises," or if he was "naked in public [in a] place provided or set apart for that purpose." We note that, by its plain wording, the statute does not require the state prove a party was offended. We further note that the offense is defined by whether the conduct occurs in public or private, and under what conditions. See State v. Kees, 919 So. 2d 504, 505 (Fla. 5th DCA 2005).

There are patently aspects of a jail cell that do not comport with a public place in the sense that it is not open to the public at large. However, we can discern no basis to ignore the fact that the cell in this case[fn2] is public in the aspect that an inmate has no control over persons being present at any given time. Cromartie's infirmary cell was open to view by any authorized employee, nursing staff, cleaning personnel, or visitors. Further, as soon as the deputy told him to stop, Cromartie was on notice that he was not alone. He, nevertheless, chose to continue his display, in violation of the statute.

We reverse the trial court's dismissal and remand for further proceedings.

STEVENSON, C.J. and POLEN, J., concur.

Not final until disposition of timely filed motion for rehearing.

[fn1] We note that Cromartie was also charged with violation of section 843.02 Florida Statutes, resisting officer without violence. This charge was not at issue in the instant appeal.

[fn2] We need not resolve whether this would apply to all jail cells.


Rumpole says, MEMO TO THE 4TH DCA RE: FN2: NOW YOU DO.

ONANISM

THIS IS WHAT THEY SPEND THEIR TIME ON NORTH OF THE BORDER

THE MIAMI HERALD:

Jury panel queried in masturbation trial
BY ROBERTO SANTIAGO


A Broward prisoner on trial on charges that he masturbated in his jail cell will face a jury of his peers.
During jury selection Wednesday in the case of inmate Terry Lee Alexander, all seven jurors admitted to attorneys that they have masturbated.

The awkward questioning was posed by defense attorney Kathleen McHugh, who faced 17 prospective jurors and asked point-blank who among them had never masturbated.
No hands went up.
Then, she went one-by-one, asking each prospective juror if he or she had ever masturbated.
All nine men said yes, two of the 10 women said no.

McHugh's line of questioning, which also included definitions of obscenity, vulgarity and indecent exposure, was a preview for a trial that will determine whether what Alexander was caught doing in his jail cell violated prison codes on vulgarity.

The 20-year-old was alone in his jail cell in November when a female deputy, watching him from a nearby control room, became offended when she saw him masturbating.
He is facing a misdemeanor indecent exposure charge and a maximum of one year in jail.


What the article doesn't say is that this female deputy has a history of filing criminal complaints against inmates who masturbate.

It is, believe it or not, against the rules of the Broward jail for an inmate to engage in onanism.

The real issue, and one that has been overlooked by all the media focusing on the antics of the Broward Judiciary, is that the Broward State Attorneys Office files this crap.

How many defense attorneys have been told by a Broward ASA that after the depos were taken that they believe the defendant is innocent but that their office has a policy of never dropping cases and making the jury acquit the defendant?

That is the real outrage that is going on North Of the Border. A prosecutors' office that has abandoned any semblance of discharging the duties of prosecutor. The Broward ASA's are for the most part merely robots that are wound up, pointed towards court, and told "try that case."

Stepford Prosecutors. A real menace to justice.

See You In Court in Dade, where as far as we know, none of the many people we know and work with on a daily basis who could testify as an expert in the Broward case, will be called as a witness.

TO HELL WITH IT ALL.

2ND DCA REVERSES TRAFFICKING CONVICTION AND 25 YEAR MINIMUM MANDATORY SENTENCE FOR FAILURE TO INSTRUCT JURY ON THE PRESCRIPTION DEFENSE.

O'HARA v. STATE, 2D05-5078 (Fla.App. 2 Dist. 7-18-2007)


This why prosecutors have a bad rap. They have only themselves to blame for publicly advocating absurd positions that could devastate a person’s life.

O’Hara was convicted for trafficking in vicodin by possessing 58 tablets of the pain killer. At his trial, he presented evidence that physicians had prescribed the medication for pain he suffered from a chronic inflammatory joint disease and from injuries he had sustained in an automobile accident. Two separate Florida Statues each provide that possessing a valid prescription is an exception to the prohibition of possessing the drug. (Sections 499.03(1) and 893.13(6). However, the trafficking statute 893.135 does not explicitly contain the “prescription defense” and the trial judge refused to give the jurors a defense requested instruction.



In granting a new trial, the 2nd DCA noted that The drug trafficking statute, section 893.135 contains no express language setting forth a prescription defense. However, its proscriptions against the sale, delivery, or possession of trafficking amounts of certain drugs are prefaced by the following qualification: "Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13:. . ." § 893.135(1)

The court called the prosecution's position on appeal "absurd":


The State's construction is no less unreasonable in the context of the case before us, involving the drug trafficking prosecution of a man who possessed hydrocodone that he obtained by prescription. At the time of his arrest, O'Hara had 58 Vicodin tablets in his possession, but under the State's theory he would have violated the trafficking law even if he had possessed far fewer. ... The dosage recommended by Vicodin's manufacturer is one or two tablets every four to six hours, not to exceed eight per day. If we were to accept the State's assertion that there is no prescription exception to the offense of drug trafficking by possession, then we would have to conclude that any person who leaves a pharmacy with only one day's worth of properly prescribed Vicodin in hand is guilty of drug trafficking and subject to at least a three-year minimum mandatory prison term and a fine of at least $50,000.



One of the doctors who appeared at O'Hara's trial testified that in the course of his practice he had written prescriptions for up to 60 Vicodin tablets. Under the trafficking statute, that many Vicodin tablets would be deemed to contain over 30 grams of hydrocodone. According to the State's reasoning in this case, any patient who had the doctor's prescription filled was subject to a twenty-five year minimum mandatory prison term and a mandatory fine of $500,000.


What bothers us is this: what kind of human being actively works to put a fellow (ill) human being in prison for filling a validly issued prescription for a needed medication? This is the type of “see no evil” bureaucratic robotic thought that one would expect to see in communist China.

25 years is more than a quarter of a person’s life! Just how did those prosecutors feel when they went home that night knowing they put a man in prison until 2030 for possessing drugs prescrbed by his doctor? How do these people sleep at night issuing this kind of devastating “justice’?

This kind of activity does not drive us to be a defense attorney. It drives us from the practice of law. Who would want to participate in a system of justice that produces these kinds of results, and engenders prosecutors to argue for absurd results on appeal?

It just makes us sick to think there are people like this with law degrees and entrusted by the State of Florida with enforcing our laws.

Some days, we just think “to hell with it all.”

DEBATING TOPICS

We watched the You-Tube debates last night and our lasting impression was not one we expected to have going in. Hands down, the candidate who appeared most presidential was….Senator Joe Biden. He deserves a second look.

Our announced favourite, former Senator John Edwards did well, as did the expected top stars, Obama and Clinton. We think that Obama followed his briefing books a little too closely. Just how many times was he going to say he was the most experienced and able candidate to be President? Ditto for Senator Clinton when she was lobbed the softball about following in Bill’s footsteps. You are proud of your husband’s achievements as President. We get it.

Memo to both Clinton and Obama: time to come up with some different answers. Keep playing not to lose, and your not going to win.

The Universal Health Care issue was not really addressed. All of the candidates have stories ( as do we) of Americans dying because they were refused medical treatment. We think Senator Christopher Dodd deserves points for bravery for responding "yes" to the question of whether he would extend coverage to illegal workers in the US.

The bottom line is that we will eventually, somehow, get out of Iraq. Once that is done, the next US President faces several challenges- keeping tabs on Al Queda and Hezbelloah so as to make sure they do not strike the US. Dealing with US energy consumption and Global Warming (China is building so many coal fired power plants as to keep West Virginia Coal Miners in business for the next 100 years). Universal Health Care. Throw in problems like crumbling infrastructure and the probable outbreak of some flu-like health crisis somewhere in the world in the next decade, and it has never been more clear that we need a new generation of intelligent and dedicated political leaders. And we need them now.


DEATH PENALTY
The Herald reports that THIS JUDGE found Florida’s current method of execution unconstitutional.
How about a .22 in the back of the head? It’s quick, cheap and efficient. If you’re going to support the state killing its citizens as retribution and punishment, why all the claptrap about it being humane? Just do it and admit the barbarity of it all and move on to the next problem.

NEW SENTENCING PHASE
Speaking of execution, Stephen Ault who raped and strangled two young girls, is back for a new sentencing hearing in Broward. His original sentence was over turned when the judge excused a juror during voire dire who had voiced “general objections to the death penalty.”
The Herald article IS HERE

If you’re ever going to challenge our position on the death penalty, Stephen Ault is the case to do it.


SHARPSTEIN UPSET
The Federal Blog and the DBR has coverage of Richard Sharpstein's fight against the Feds in a Health Care case. The lead FBI agent called his clients to tell them Sharpstein had a conflict on the case. If you know Sharpie, he is a bit miffed. Mr. Markus can also be counted on the cover the Noriega proceedings.


2 LIVE CREW REDUX
Finally, there is a post on the Broward Blog about Judge Grossman's ruling over a decade ago on 2 Live Crew. There is a lengthy response by local attorney Jack Thompson. if you know of Mr. Thompson, you know he never passes on the opportunity to expound on his views of pornography in our culture.

Perhaps this is a good topic for debate here. It is fair to say that we would head into such a discussion opposed to censorship. However, with the rise of deadly violence among our children, Mr. Thompson's views have an important place in the discussion.

Have at it. Presidential politics; the death penalty; free speech. Topics for debate for those of us not lucky enough to be camping in the Badlands this summer.


See you in court.

THE WAY THINGS USED TO BE....

There is a lot that went on this past weekend.


On Sunday the Herald and David Ovalle had a great article on
the way things used to be.

Ed O’Donnell Sr as the prosecutor. Mike Von Zamft as the defense attorney. The roaring seventies when the courthouse thumped to a disco beat, Gerstein was the prosecutor not the building, an evil serial killer named Robert Carr was on the loose, and Edna Buchanan of the Herald was writing all about it.

Those were amazing times. You new lawyers should ask some of the older lawyers what it was like. Miami was a much smaller, much more southern city. Anita Bryant was on the loose campaigning against Gay Rights, “English Only” was a hotly debated topic, and our courthouse was a small place indeed. There were certain Judges like Ed Cowart who had the shoulders of giants, upon which we now stand.


And Herald reporter David Ovalle again with this story
about Miami-Dade Sgt. Raymond Richard Lumarque who sits in a security cell at TGK accused of armed sexual battery against his ex-wife.


Then the Broward blog reports that attorney Steven Finta, previously in these pages for toting a gun into the Broward Courthouse because he had a client that was threatening him, was arrested again, this time for punching a deponent in the snoot during the depo. There is something to be said for doing something the rest of us only dream of.


It’s a long hot summer. Not quite the Bronx is Burning summer of 77, but the summer of 07 sure has had its surprises. Maybe the Bronx isn’t burning but that courthouse north of the border sure is smoldering.

See you in court.