SUPREME COURT

Update- our favourite federal blogger has temporarily lost his marbles. Go see his blog and see what he says about Scalia. 

With the Supreme Court taking center stage in the news, we present to you a few supreme tidbits: 

Supreme Court Decision Predictor...... It turns out there is a lock solid way to determine which side won and which side lost after oral arguments before the Supreme Court: The side receiving the most questions loses. This predictor has been determined to be correct more than 84% of the time. Almost as good as our football predictions.   The title of the post links to the NY Times story. 

Sotomayor: Chosen because: 1) She's a woman; 2) She's Hispanic; 3) She can easily win confirmation (she was nominated to the district court by George Bush Sr. (The Good Bush) and to the Appeals bench by Clinton); 4) Because she's a Yankee Fan. 5) She's the best and the brightest around.

Pick one or all and let us know. 

The Supreme Court issued a major 6th Amendment decision Tuesday:

Montejo v. Louisiana: When Scalia writes for the majority in a criminal law case, you know it can't be good.  Scalia was hunting, and the scope of the 6th Amendment was squarely within his sights. But he also has bigger prey in mind, as we shall see. 

In Jackson v. Michigan, decided a scant (in Supreme Court time) 23 years ago, the court held that the police cannot initiate interrogation when a suspect has appeared at an arraignment and been assigned counsel. 

Montejo appeared at a preliminary hearing  and stood "mute". Uhho. Never a good idea when Scalia is around.  Montejo was appointed counsel. But those cops- geez they are fast. Before his lawyer could see him, the cops grabbed Montejo, took him out to the scene to locate the murder weapon, and just for good measure,  the cops encouraged Montejo to write a letter of apology to the widow of the deceased. This being Louisiana, Montejo was sentenced to death for poor spelling in the letter, and murder. 

As Scalia winds his way through the analysis of why neither the solutions of the Louisiana Supreme Court nor Montejo are "practical" we note this chilling passage and can see Scalia's lean and hungry look when it comes to .....Miranda???!!!!!:

And when a defendant is read his 

Miranda rights (which include the right to have counsel 

present during interrogation) and agrees to waive those 

rights, that typically does the trick, even though the 

Miranda rights purportedly have their source in the Fifth 

Amendment:...

Rumpole says: "purportedly"???....uhho!! 

 Scalia has Miranda on his mind, and not in a nice way. Although that is fodder for another day, can't you just see Assistant Attorney Generals around the country looking for the right case to bring to Scalia so he can sever Miranda's head and serve it on a silver platter to the right wing?  There's a federal appeals court judgeship waiting for the AG who kills Miranda. 

And here's why this decision affects Miranda. This case is a 6th amendment right to counsel case. Miranda is (purportedly) a 5th amendment case. In this case Scalia writes to strike down the "prophylactic" rule created by Jackson in 6th amendment cases when counsel is appointed. 

And why does this decision threaten Miranda? Here's what Scalia writes: 

We created such a  presumption in Jackson by analogy to a similar prophylac- 

tic rule established to protect the Fifth Amendment based Miranda right to have counsel present at any custodial  interrogation.

See what he's doing? First he strikes down the "prophylactic" protections in a 6th amendment case analogous to Miranda.  Can striking down the "prophylactic" protections in 5th amendments Miranda cases be far behind, especially since in Scalia's view, Miranda merely "purports" to have it's origins and protections in the 5th amendment?   And of course, when Scalia does go after Miranda, what case will he cite as precedent? THIS ONE. 

It's a particular ingenious way of interpreting the constitution and creating reasons to overrule other decisions. Create case law under one amendment to be used to undermine the firmest of constitutional decisions on another amendment. Hardly the acts of a man who tells anyone and everyone that constitutional jurisprudence should be limited to original intention. 

Here, in all its glory, is Scalia's view of the real world of police and defendants:

No  reason exists to assume that a defendant like Montejo, 

who has done nothing at all to express his intentions with 

respect to his Sixth Amendment rights, would not be 

perfectly amenable to speaking with the police without 

having counsel present.  And no reason exists to prohibit 

the police from inquiring. Edwards and Jackson are 

meant to prevent police from badgering defendants into 

changing their minds about their rights, but a defendant 

who never asked for counsel has not yet made up his mind 

in the first instance. 

No reason whatsoever Justice Scalia, except that Montejo is going to die because he remained mute at his preliminary hearing. I don't know about you, but we rarely encounter murder suspects who are versed in the intricacies of 6th amendment case law. 

So for today, in a court still dominated by Scalia and his cohorts when it comes to criminal law, the lesson is silence is NOT golden:

and even if it is reasonable to presume from a defendant’s 

request for counsel that any subsequent waiver of the right 

was coerced, no such presumption can seriously be enter- 

tained when a lawyer was merely “secured” on the defen- 

dant’s behalf, by the State itself, as a matter of course.

Oh. And just in case you still don't believe me when I tell you Scalia and his gang are the farthest thing imaginable from true conservatives, consider this little paragraph about society versus the individual: speculating on the result if the court found that the appointment of an attorney (versus asking for an attorney and getting one) would automatically trigger the "prophylactic" protections ala Miranda that Scalia despises so much, Scalia shows us how much of a collectivist (versus a conservative truly concerned about protecting individuals from government) he is:

That  would have constituted a “shockingly dramatic restructur- 

ing of the balance this Court has traditionally struck 

between the rights of the defendant and those of the larger society

So there you have it. Scalia the great collectivist-always worrying about the rights of "the larger society". Upholding the rights of society versus the individual- doesn't sound like a conservative to me. 

See you in court, whispering to defendants "ASK for a lawyer. Don't just accept one."

THE CAPTAIN REPORTS:

BREAKING NEWS ....... U.S. SUPREME COURT .....

SONIA SOTOMAYOR NOMINATED TO SUPREME COURT

Looks like it's the hispanic female as Pres. B. Obama will announce his nomination of Sonia Sotomayor, age 54, to replace David Souter. She is a federal judge on the U.S. Court of Appeals for the Second Circuit.

Sotomayor was born in the Bronx, New York, to Puerto Rican parents. Princeton undergrad & Yale Law School graduating in 1979; after five years as an ADA in New York, she moved on to private practice for seven years. She was nominated on November 27, 1991, by President George H. W. Bush to a seat on the U.S. District Court for the Southern District of New York. On June 25, 1997, she was nominated by former President Bill Clinton to the seat she now holds.

And, in case you care, she's a fan of the New York Yankees!

CAPTAIN OUT ........

30 YEARS OF SHAME

Florida marks the 30 year anniversary of the re-institution of the death penalty. The title of the post links to the Herald's article. 

John Spenkelink was executed May 25, 1979 for the kind of murder that now-a-days would not come close to meeting the aggravating factors required for the death penalty.

Since that infamous day Florida has executed 64 individuals. Who really believes not one of them was innocent? 

Do we really believe that there is no level of human brutality that merits death as a retribution? No. Indeed Dade has recently convicted several men for a kidnapping, sexual abuse, and execution of a young woman at roadside that by all accounts was so brutal and so terrifying for the victim that execution seems to be a just punishment. 

But we have a legal system that is so flawed, so unjust, so broken, that under no circumstances can   we look  at ourselves in the mirror and say "you guys got it right. You're so good and so careful, and you spend so much money on making sure the accused has adequate and well trained and well funded defense attorneys, that you can take the absolute power of life and death and put it into the hands of the justice system."

No way.  Dozens of people have been exonerated from death row. That doesn't mean life in prison. That means the system got it wrong. That means the supposedly most carefully prosecuted and scrutinized  cases convicted an innocent man. 

Who are we kidding? 

The justice system doesn't work. 

The death penalty doesn't work. 

And we remain the members of a select club of nations, including  North Korea and Iran and China, that executes its citizens. 

See You in Court. This is a shameful day.

THE PAYOFF

45 years after 3 civil rights workers were brutally slain, Philadelphia, Mississippi, a town synonymous with deep south "justice" and racial hatred, has elected its first African American Mayor. 

The election of Pentecostal Minister James A Young on Tuesday means that James Chaney, Andrew Goodman and Michael Schwerner did not die in vain.  The title of the post links to the NY Times story. 

WHAT'S WRONG WITH THIS QUOTE?

In a speech at the National Archives on Thursday, President Obama had this to say when announcing that he was ordering the transfer of one detainee from Guantanamo to the United States for trial: 

“Preventing this detainee from coming to our shores would prevent his trial and conviction,” Mr. Obama said.

We're transferring a prisoner FROM Cuba, TO the United States for a quick "trial and conviction"???

Seems to us  that makes our judicial system no better than say, Cuba's, or Iran's. 

If the President of the United States announces the beginning of a procedure sure to end with a "trial and conviction" is there any hope this guy gets a fair trial? 

We expect better from a guy who touts his experience as a former professor of Constitutional law. Or have they done away with the presumption of innocence at the University of Chicago? 

SHOOTING SNAFU?

First- SILENT CHARLIE - DAY 5. 

By virtue of the comments yesterday, some people have many of the questions we have about what's going on at the PDs office. 

ASA VON ZAMFT BLAMES MEDIA FOR SHOOTING:

This has been on our plate for a while, but we just couldn't get to it. 

In this New Times Story, ASA Michael Von Zamft gives his "personal opinion" that a news broadcast by Emmy Award winning reporter Jim DeFede about a shooting caused a revenge shooting thereafter. 

DeFede responded in his online column here- basically admitting that his interview with the mother of a 16 year old young man, who was tragically killed for what appears to be no reason, caused a drive by shooting of the woman's home in which bullets were sprayed and two more of the woman's children were shot, but not seriously. 

Gang war is out of control in Liberty City. That much is clear. 

Long Weekend coming up.  Another Tuesday after a Monday off. 

What will the lines be like? 

Will Silent Charlie address the questions swirling around his confused office and embattled administration? Until he does, he remains ensconced in his office, Nixon/Bush like, with a small circle of advisors telling him to hold on. 

Rest assured we will bring you those answers, and more, next week on your favourite legal blog. 

SILENT CHARLIE DAY 4

UPDATE: This comment by a reader says it all:

rump - I think the real horror that needs to be looked into is why PDs who work their butts off (and there are LOTS of them, besides what some of your readers think) haven't gotten raises. This when most of them are carrying ungodly amounts of student loans and live in the 3rd most expensive city in the US!

UPDATE: BLOCKBUSTER INDICTMENT!  A Former Federal and State Prosecutor in New Jersey, and now a prominent criminal defense attorney- Paul Bergrin-has been indicted in federal court on 14 counts of obstruction of justice, witness tampering, murder and conspiracy to commit murder. The charges arise out of accusations that Bergrin orchestrated the murder of witnesses in two cases. High profile NYC defense attorney Gerald Shargel is defending Bergrin. The NY Times article is here. 

We are still wondering about our questions in re:  the 16 PD "Straw attorneys" whose position was budgeted by the Legislature, and whose salaries were paid by us tax payers, but who otherwise don't exist. Is what the PD's office did legal? Do other state  offices do this?  Is this why there's only one person at the clerk's office whenever we need a file? 

And here's a new one- while we were in the shower the other day we started, as is our wont, to do some math. 16 positions- assume on the low side an average starting salary of $30,000.00 per year, that's ..hmm...carry the two....ummm...$480,000.00 Brummers!!!  That's an awful lot of hay to give to the top horses in the barn. 

  And (because we take long showers) we also thought of this: Is this the first time BHB has done this?  We all know that no matter how bad the evidence is against out client, we all like to say "they've never done this before. It was a one time, stupid thing to do."

So has the PD's office been taking money for "straw lawyers" for years? And who got that money? 

You see, without the Susannah Nesmiths and now the Vanessa Blums of the world  (Markus reported Tuesday that the Sun Sentinel canned Blum for budget reasons)  who else is there to ask these questions and "follow the money"?

We'd much rather see Ms. Nesmith or Ms. Blum meeting with a strange and mysterious figure cloaked in a Macintosh and obscured by the shadows of a late night in the Jackson Medical Garage across from the PDs office.   "What is going on over there"? we imagine them saying, fog swirling in the background. 

"Follow the money" would be the whispered reply.  The glow of a cigarette breaking the dark and gloomy midnight hour. 

The problem is that at the rate we're going, this story will be assigned to the obit copy clerk, as there are no real reporters left in Miami to "follow the money" flowing through the strangely silent offices of Carlos Martinez and company. 

SILENT CHARLIE DAY FOUR.

And yes, we have been Twittering about the silent PD's office here. 

3rd DCA ROUNDUP

If it's sometime after Wednesday, it's time for our (semi) regular perusal of the opinions emanating from somewhere down south and right near the Fair/Carnival grounds. Location coincidence? We say not. 

Nottage v. State, stands for the proposition not being sure as a juror still means you can find someone guilty for murder. Poor Nottage was tried for murder, kidnapping and a bunch of other charges. The jury sent out a note it was deadlocked. The Judge read them the infamous "Allen Charge." The Jury was still deadlocked. Crafty Judge Jimenez sent them home (rather than reading a second Allen charge) and therein lies the hook upon which the 3rd hung their affirmation of the verdict. While the case law is clear that successive Allen charges are improper to the point of being impermissible,   (the 4th DCA calls giving the Allen charge "crossing the river of no return" Washington v. State, 758 So. 2d 1148, 1154 (Fla. 4th DCA 2000) ) the 3rd DCA has not adopted that per se rule. And the 3rd DCA has never said (and probably will never say) that having the jury go home (and discuss the matter with their family)  after receiving an Allen charge is not error. 

Facts ignored by the 3rd DCA: After sending out a second note indicating the hold out juror wanted to be dismissed, the court called the attorneys back to court. Between the time of the note and the court coming into session, the jurors found the defendant guilty.  And now Nottage gets to spend the rest of his life in prison thinking "if only they had gotten off their asses a bit quicker and gotten back into court...I wouldn't be here."

Nice bit of jurisprudence. We can all be comforted that justice was done with this verdict. 

KW v. State. Judge Rothenberg tosses us a bone. In order to prove first degree petit theft, the state must establish the value of the Res was in excess of $100.00.  Conviction reversed. Quota for year: MET.

Zelaya v. State. Judge Marin joins the wall of shame. Case returned for evidentiary hearing on the rule 3 because (everyone now) the record does not conclusively refute the allegations in the petition.

And Judge Marissa Tinkler Mendez re-joins the wall of shame in Palomares v. State.  Tsk. Tsk. 

And Judge Adrien joins his colleagues on the wall of shame (that's all he needs now) here in Fonte v. State.  

Ps. You can still vote in the Adrien poll for a few more days. 

Kersaint v. State.   Kudos to Joe Klock. Motion to disqualify trial judge GRANTED. 

Facts: Def scored NSPS. Had been in custody for two years. Defense requested PSI. Before PSI was returned, the trial judge : a/k/a "the lord's gift to jurisprudence" opined something to the effect of  "Well, I won't take a CTS plea. And 15 years it too much. I want this guy to get a prison number. I'm thinking of something around four years."

Talk about prejudging a case. Can't you just see this  Judge leaning back in their chair?  Eyes closed. Fingers clasped tightly beneath their chin. Contemplating justice.  Meting out sentence as only s/he can do because they are "TLGTJ".  Sheesh. The 3rd DCA took pains not to list the Judge's name. 

So there it is. Lessons for the day- return to court quickly when the jury wants you. 

YOUR NEXT COUNTY JUDGE IS HERE

Update: Michael Vick released from prison. We know you really needed to know that. 

UPDATE: Silent Charlie still silent. Day three. While we wonder- where did the money go?

A READER WROTE IN WITH THIS LIST OF ATTORNEYS APPLYING FOR  COUNTY COURT JUDGE.

The reader's comments to the list are in yesterdays comment's section.  We do not pass any judgment except to say we agree with the person who posted the original comment: ASA Bill Altfield would be the perfect selection. We cannot think of another attorney so universally respected who has the experience and temperament to be a great judge.  

Shhhhhs: CARLOS MARTINEZ STILL SILENT: DAY TWO 

Before we get to the candidates, a reader yesterday informed us in the comments section that long time attorney and perennial judicial candidate Albert Zemlock has passed away. Known for campaigning with a large Z, Zemlock was a character and and a self admitted "nut" when it came to running for judge. He once had a plane fly a large Z over Miami on election day. 

William Ira Altfield (Great choice)
Maria T. Armas
Bart Haskell Armstrong 
Tanya J. Brinkley 
Veronica P. Clarke 
Joseph I. Davis, Jr. 
Michael H. Galex 
Ivy R. Ginsberg 
Diana Elizabeth Gonzalez 
Monica Gordo 
Tamara Ilene Gray 
Jose Ricardo Iglesias 
Michael R. Jones 
Bonita Jones-Peabody 
Kristi F. Kassenbaum 
Robert James Kuntz, Jr. 
James E. Leano 
Barry Marc Mankes 
Lynette McGuiness 
Gina Mendez 
Stephen T. Millan 
Barnaby L. Min 
Anita Margot Moss 
Gordon Charles Murray, Sr. 
Alicia M. Otazo-Reyes 
Jeffrey Joseph Pardo 
Michaelle Gonzalez Paulson 
Gladys Perez 
Margaret Ann Rosenbaum 
Michele Samaroo 
Lourdes Simon 
Jeffrey D. Swartz 
Alan Adrian Taylor 
Marie Jo Toussaint 
Angelica D. Zayas 

STRANGELY SILENT

(For a guy that clearly knows how to use a phone, Carlos Martinez is strangely silent these days.)

For a lawyer, for a defender, for an advocate for the poor, the weak, the gullible,  Miami Public Defender Carlos Martinez remains strangely silent over the controversy regarding his office.

His employees are not, judging from the response in the comments section of the last post. 

THE ACCUSATION: That facing times of trouble and crisis, the Miami Dade Public Defenders office used money designated by the Florida legislature for 16 new attorney positions for raises- mostly for upper echelon employees.  Someone from the Dade PDs office signed off on a budget request that included positions for 16 attorneys that they never had any intention of hiring. Who did that? Why?  Is it legal?  Do taxpayers have any rights here to find out what's going on in the Dade PDs office? What about the Florida Legislature? Do they care? How about other SAO and PDs offices who submitted legitimate budgets without straw positions? They played by the rules.  Do they have a right to complain?

There are lots of questions. Unfortunately, the person who knows the answers isn't speaking. 

THE RESPONSE BY CARLOS MARTINEZ:

(this space for rent. Inquire 305-545-1600. Ask for Carlos.)

THE FALLOUT: The 3rd DCA just spanked his office. More than 40 private attorneys have agreed to pitch in and help out the PDs office by taking cases for free. Now those attorneys are learning that they are working for free, not because the PDs office has no funds for new attorneys, but because the PDs office chose to use that  money for raises for  long term employees who mostly are not those in court fighting for clients. 

THE LEGAL COMMUNITY AWAITS THE RESPONSE FROM "SILENT CHARLIE." 

PLEASE RESPOND

OK Carlos Martinez (BHB) here's your forum. 

The criminal legal community is watching. 

The 3rd DCA just spanked you and said that you (BHB) made poor choices in spending money for new attorneys on raises for existing attorneys. Several in-court  PDs have sent us emails saying they haven't received a cost of living increase in a few years.

SO WHERE DID THE MONEY GO?

 

Were the raises given to top echelon attorneys who are not the ones in court trying cases and holding the line against overwhelming odds?  

Is the 3rd DCA wrong?

You have a serious morale problem bubbling beneath the surface and we have the emails to prove it. 

So as we said once before to another PD in another circumstance, PUT DOWN THAT DANISH  and answer the question:

WHERE DID THE MONEY GO?

See you in court. (Well not you Carlos, but we will see those hard working, under paid PDS who haven't had a COLA in a while. ) 

THE CAPTAIN REPORTS:

BREAKING NEWS ...................

3RD DCA ISSUES THEIR OPINION ON PUBLIC DEFENDER CONFLICT CASE


While I have no doubt that Rumpole will provide you with a more comprehensive review of the very important decisions reached by that august body in Southwest Dade, one opinion today needs to be immediately reported .....


The State of Florida and Office of Criminal Conflict
and Civil Regional Counsel, Third District Court of Appeal Region
Appellants,
vs.
Public Defender, Eleventh Judicial Circuit,
Appellee.

http://www.3dca.flcourts.org/Opinions/3D08-2272.pdf

The 3rd has reversed the decision of the Honorable Judge Stanford Blake. The panel of Judges, SHEPHERD, CORTIÑAS, and SALTER, JJ. issued a 20 page opinion. They collectively asserted their genuine heartfelt feelings for the Public Defender's Office and their individual assistants for the inadequate level of funding that is provided to them by the legislature. But, they said, this case is not one that belongs in the Courts, instead, the P.D.'s beef is with Tallahassee and that is where they should take it.

They pointed out that any concerns for clients receiving inadequate representation must be decided on a case by case basis, and not by permitting the collective withdrawal by the PD from nearly 12,000 cases. They also pointed out that the legislature amended the laws regarding withdrawal from a case in 2007 and that excessive caseloads in simply not a grounds that would permit withdrawal from a case.

So, Mr. Public Defender Martinez (formerly BHB), in a nutshell, the 3rd is telling you to take a hike, up the Turnpike, then to I-75, make a left turn at I-10 and stop in the town where 120 House members and 40 Senators and 1 Governor decide, in dollars and cents, what constitutes competent representation under the 6th amendment.

...... turning to other 3rd DCA opinions issued today, one can sum up the day as follows: JUDGE BARBARA ARECES -2 : STATE OF FLORIDA - 0

While Judge Areces occasionally gets knocked on this Blog for her lack of experience in the field of criminal law, today, the 3rd DCA spanked the State of Florida and affirmed Areces on two separate cases.

In State v. Trujillo, (http://www.3dca.flcourts.org/Opinions/3D07-1814.pdf), the State tried a "backdoor approach" to something they could not fit through Judge Areces' front courtroom doors. The panel recognized it and said no. The actual issue surrounded the defendant’s motion to compel the identity of the confidential informant. The interesting part of the read, worth quoting in full here, comes from CJ David Gersten:

"Although not germane to this appeal, I harken back to my first reversal as a circuit judge. The reversal involved a similar situation, where I ordered disclosure of a confidential informant. Assistant State Attorney Tom Robertson, the State’s division chief, petitioned for certiorari. This Honorable Court reversed me, holding that the disclosure of the identity and whereabouts of the confidential informant was not necessary to the defense. See State v. Perez, 438 So. 2d 436, 439 (Fla. 3d DCA 1983). This footnote is proof of a trial judge’s elephantine memory. Though many trial judges claim they do not mind reversal, I believe that the sting of reversal never disappears. "

In State v. Suarez, (http://www.3dca.flcourts.org/Opinions/3D07-3342.pdf), the State again lost to Judge Areces. In this case, the Judge granted a Motion to Dismiss based on expired statute of limitations. The defendant was charged by Information with grand theft and burglary. Thereafter, the State issued a warrant for the defendant’s arrest while he was incarcerated in a federal prison located in Florida. The Statute of Limitations ran before he was served with the warrant. The State argued that he was "absent from the state for the purposes of the statute". The defense argued that he was in fact "physically present and not absent from the State of Florida". The Court affirmed the dismissal.

CAPTAIN OUT .........................

LOCAL NEWS

The BBC is on fire today. 

The Vatican denies Pope (Adolf) Benedict's participation in the Hitler Youth, although the Pope himself has admitted it. 

The BBC reports here on the convictions of 5 of 6 defendant's in Miami Federal court after 16 or so trials.

Congrats to Richard Houlihan who is alone among the attorneys in that case who will not be filling out notice of appeal forms. Good work Richard. 

Here's the point with the BBC stuff- if these trends keep up, local news will soon be gone. No one to report on County Commissioners doubling dipping into their expense accounts; no one to wander the hallways of the courthouse at 2PM and write about all the Judges missing.; no one to write about the cops accused of misconduct and no one to write about the injustice of trying defendants over and over until the government gets a conviction. 

We can function without Susannah Nesmith. We cannot function without the Susannah Nesmith's of the world. It's a scary thought that the free press is fading  away not with an assault against the first amendment, but because the morons who made the business decisions for newspapers  didn't see  five years ago Craigslist was about to cripple their classified ad income. 

Al Gore's "lock box" for Social Security will be gone in 2037, 4 years earlier than thought, and bad news for those of us who are aging baby boomers and write blogs in our spare time. The NY Times reports here. 

This what the blog is when we do not have the luxury of the past few weeks of Judges royally screwing up.  Even a broken clock is correct twice a day.

Oh wait. There is some really big courthouse news. The traffic clerk's attorney room, which previously opened at 8:30 to just accept pleadings will now.......ta da!!!!  Do all of the functions the clerks office does during regular hours!!!! Yea!!!!  

Besides accepting pleadings between 8:30 and 9:00 am, the clerk's office will now perform the regular functions of making you wait an interminable period of time while they perform the most mundane tasks. Thanks to Richard Hersch and the traffic guys for really going out on a limb and getting this done. 

If you want our opinion (and since you're reading the blog you must) the way to fix county court, traffic court, and the clerk's office mess  is to rent a really large cruise ship- load the whole lot of them on it- take it out into the ocean- and sink the sucker with a torpedo. And then start over. 

See You In Court. 

SCALIA UNLEASHED.

The most engaging, interesting and perhaps (just perhaps) the brightest of the Supreme Court Justices  recently let loose in a talk at the American University's College of Law. 

The title links to the Time's article. 

Here's something even our favourite federal blogger will like: Scalia on Hahvad:

“By and large,” he said, “I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well (Rumpole wails: "say it an't so Mr. Markus") , but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, O.K.?”

So which is it David: Silk purse or sow's ear? (ps. we know we're  a "know nothing peon"  who did not go to a "best and brightest" law school. But, uh, isn't the phrase "make a silk  purse out of a sow's ear" and not the reverse ? Just wonderin...)

In response to another question, Justice Scalia made a point about how he interprets statutes. He used an opinion by Justice Stevens in an important administrative law case, Chevron v. Natural Resources Defense Council, to explain why he believed that comments from legislators were irrelevant in figuring out what statutes meant.

“Do I have to defer to John Paul Stevens because he’s the author?” Justice Scalia asked. “ ‘Oh, John, you wrote Chevron. You must know what it means.’ Of course not! John doesn’t know what it means! Once you let loose the judicial opinion, John, it has a life of its own, and it means what it says.”

“Now why should legislation be any different?” Justice Scalia added. “Once Congress floats that text out there, it has its own life. It means what it means. It means what it says.

Hmm...the authors of a law don't know what they wrote. "It means what it means" says Nino.

 Hmm...what those who wrote it think it means - that means nothing.

Hmmm....sort of puts a dent in "original interpretation" huh? 

But what do we know? We didn't pahk our cah in the Havahd yahd. *

We also don't run $700 million dollar ponzi schemes after going to Yale and Havahd law school as Havahd law school alumnus Mark Drier just pled guilty to on Monday. 

NOT GUILTY IN BROWARD CAPITAL MURDER CASE

North of the Border, which leads the state in acquittals at trial, just took a torpedo beneath the waterline last Thursday as as defendant accused of the murder, sexual battery, and strangulation of a young woman was acquitted of all charges. 

Yes you read that correct. A capital death penalty murder case. And the defendant was acquitted. Of everything.  Not guilty.  

Only North of the Border. 

The title of the post links to the Sun Sentinel article. 

ASA Shari Tate was the trial prosecutor of this ship as it went down. 

Defense attorneys were Jim Lewis (guilt phase) and Kevin Kulik (penalty phase). 

Perhaps it's time for Mr. Satz to take a look into the budget and find money to hire 

someone who knows what the hell he's doing in investigating and prosecuting death cases. Can you think of anyone we know who might be available for such a job for the next few years? Hint: his name is often misspelled as "Laser".

See you in court. 

HARD AT WORK

Here was the scene (sent to us by an alert reader) last week at approximately 10:00 AM. With at least three escalators out, denizens of the REGJB took bets on the 45 minute period the escalator technicians would actually stop their breaks and do some work. The winner was apparently a bailiff who correctly guessed 2:00-2:45 pm. 

And speaking of hard at work, we received an invitation from Judge Deborah White-Labora regarding the 20th Anniversary of Drug Court.  

As many of you know the first  Drug Court in the nation  started right here, in our building, with Judge Stanley Goldstein.  Drug Courts now number in the hundreds across the nation. And they all look to Miami Dade as the one who started it all. 

Judge White-Labora extended an invitation to all of us to attend the celebrations on May 20, 2009 at the steps of the Civil Courthouse (naturally. Why hold the celebration at the actual building where Drug Court is? That would be way too logical.) 

The festivities start at 8:00 AM (!!!!) at 73 West Flagler street, and despite our cheap shot about the location, it's a worthy event that should be attended. 

The people at drug court work very hard. The fourth floor courtroom is not one that you will see empty at 1 or 2 pm. The hard work of the lawyers and staff goes well on into the afternoon and evening. 

And the lives they save....well just imagine the downward spiral of drug abuse and crime. Calculate the costs to our society for every addict that we end up sending to prison for years because they snatched a purse or sold some drugs to support their habit. And now realize that thousands of those potential inmates are hardworking and productive citizens all because of an idea a few people had 20 years ago that worked. 

The next time the SAO asks your client to make a donation....think about Friends of Drug court.  (If it's good enough for Rush Limbaugh, it should be good enough for your client.) 

More details to follow on the 20th anniversary  as soon as someone tells us what else is going on. 

A CHILLING EFFECT

Before we begin, we continue our story that broke late yesterday that Circuit Judge Tam Wilson will be retiring this coming October, 2009. 

A CHILLING EFFECT:

The Justice Department has announced  that the former Justice Department lawyers who authored legal memos justifying the use of coercive (read, torture) tactics against Al Queda prisoners, will not be subject to legal prosecution.  The title of the post links to the article. 

Huh?

Lets, break it down to its simplest elements. 

The United States Justice Department will NOT prosecute attorneys who rendered a legal opinion that we now believe to be both wrong, and odious to the principles upon which this country was founded. 

Since when was it a crime to author a legal opinion?

Many of us are called from time to time to interpret statutes and case law for our clients. Those who have a modicum of talent for it command a high fee for their abilities. (The others are mostly likely to don a black robe at some point, but that's another subject for another day.)  

Many times the legal opinion is correct. Sometimes it is not.  Under what theory can having the wrong view of a law render the attorney subject to criminal prosecution?

Can you imagine the chilling effect prosecuting lawyers for having the wrong opinion about a law would create?   

Lawyers who have been "house counsel" for criminal organizations have been subject to prosecution. But in those cases the prosecution was able to prove that the attorneys entered into a conspiracy to assist their clients in breaking the law. 

In the "torture memo" case, the issue is whether  Justice Department attorneys committed  a crime by giving  a legal opinion endorsing as legal  the methods the CIA wanted to use to extract information?

In our opinion the authors of the "torture memos" were dead wrong.  Their view of the Constitution was antithetical to all that we believe the Constitution stands for.  However, the operative phrases there are "in our opinion" and "we believe." 

Can you prosecute attorneys for having the "wrong" opinion? Who decides what is right and what is wrong? 

In the 1950s the government  prosecuted  attorneys for being communists. Do we want to go back to those days? 

According to the NY Times article, the Justice Department is not ruling out seeking action against the attorneys by their respective state bar associations. This is just as bad. "We may not throw you in prison for having the wrong views, but we might just take away your ability to practice law." 

Nothing about this is good. 

The issue of torture has fallen before the crucible of American opinion, American elections, and the debate among Americans. Hopefully future presidents and future generations will learn from Bush's folly.  But we gain nothing, and we lose our ideals and our identity when we prosecute thought and opinion, no matter how wrong, no matter how "Anti-American" the opinions are. 

See you in court, wearing a coat, because it's getting a bit chilly out there. 

THE FRED STRIKES BACK

BREAKING BLOG NEWS: From reporter Bill Shields via the South Florida Lawyers Blog: Circuit Court Judge Tam Wilson is .....outta here. Come October 2009 Judge Wilson will retire to golf, pina coladas, late lunches, early dinners...which if you think about it, sort of begs the question as to why retire when the State of Florida will pay you more than 150K a year to do that and all you have to do is wear that dopy robe? 

 But lets not rain on Judge Tam Wilson's parade. He was a good, fair, hard working judge. And we echo the sentiment of the Civil Blog guy- we may never have always gotten what we wanted from Judge Wilson,  but we never left his courtroom without believing that our client  got a full and fair hearing on the issues. Tam Wilson was one of the really good guys and his departure leaves a hole on the Dade Bench that will be hard to fill. *

Insanity: Doing the same thing over and over and expecting different results. 

Albert Einstein. 

After last week's dustup over Judge Fred Seraphin's putative refusal to call attorneys out of turn during the busy Wednesday sounding calendar in County Court, we sent our spy to Judge Serpahin's courtroom Wednesday morning for a report. The result- a favorable, if somewhat over enthusiastic,  report for Judge Seraphin. 

Rumpole,  I'm here outside courtroom 4-9 at 9:10 and something amazing is going on: the courtroom is quiet and empty. There is a sign announcing Judge Seraphin's new policy- attorneys will be called out of turn between 8:30 and 9:30 am. 

Not since Judge Fred Nesbitt prowled the hallways of County Court in his bright blue robe, terrifying prosecutors and generally snarling at everyone, have I seen a more contentious problem then what was brewing between defense attorneys and Judge Seraphin these past few weeks.  And then,  just like that, PRESTO!!!  A little good old fashion common sense has everybody singing a different tune.  The Judge seems happier. The attorneys are happier. Even the pro se defendants are happier. .... As Bob Dylan sang, "the times" old rumpy, "they are a changing..."  This is county court agent 99 signing out.

Rumpole says: Well done Judge Seraphin. Well done indeed. 

Coming up next on the blog-  Can they really consider prosecuting lawyers for their written legal opinions? Only on your humble little Justice Building Blog. 

See You in Court,  with a new and fuller appreciation for the fact that there really is no cure for drinking too much Tequila. 

*there is absolutely, positively no hidden connection whatsoever between our phrase 

"...leaves a hole...." and the phrase associated with those last two words, and Judge Wilson. Would but we could say that for the rest of his brethren. 

CINCO DE MAYO

UPDATE: WEDNESDAY. uhhhhhgggghh. No more Tequila. Ever. Going back to sleep. 

HAPPY CINCO DE MAYO 

Unfortunately this Cinco De Mayo is turning out like most other Cinco De Mayos, meaning we might not make court tomorrow. Ole!

WHAT HAVE WE WROUGHT?

Before we address the article, the Broward Blog reports the bill to do away with depos on 3rd degree felonies has died. This year. Like a vampire, most bills bad for criminal defense will rise once again to walk the earth (or Tallahassee) searching for sponsors ready to feed it on the blood of public opinion. 

 

SEXUAL PREDATORS LIVE UNDER MIAMI BRIDGE. 

The title of the post links to the compelling Miami Herald article that details the growing population (now 66, up from 22 a year ago) of convicts who are forced to live under the Julia Tuttle Causeway so as to satisfy the requirement that they not live within 2,500 feet where children gather. 

Let us be clear on this: children are our most precious resource and should be carefully protected at almost any cost. The devastating impact of sexual abuse creates a cycle that perpetuates from generation to generation. We are not decrying the law designed to protect children. We are just noting that a certain amount of fundamental decency requires that if we are going to have and enforce this law, the people convicted need a decent place to stay.  

Living under a bridge  doesn't do anything to help this problem. 

Cuba doesn't do this to their citizens. 

North Korea doesn't do this to their citizens. Neither does Iran, or China, or any other country that we berate for not having as civilized a justice system as we have here. 

It's a good thing to keep sexual predators away from children. 

It's an embarrassment to force them to live under a bridge. 

See you in court, still wearing a mask because of the swine flu. 

FACDL BANQUET LAST NIGHT

Rick Freeman wraps up a good year as president. 

Hector Flores   (former hot shot federal PD, and now in private practice, and the husband of blog favourite Judge Mary Barzee to boot) now takes over as President for the next year. 

Awards were given.  Speeches were made.  It's a good organization and if you haven't joined (and aren't a prosecutor) you should. 

We would have been there, except we were drinking some exceptional Kentucky Burbon.

Jack Kemp, Republican luminary, who was notable for his embracing supply side economics and for promoting the Republican Party (as the Party of Lincoln he liked to say) to embrace minorities, has passed away. Sad to note that at this point, both of Mr. Kemp's major causes have not been successful. 

The NY Times Obit is here.

The Republican party is disintegrating. It has imploded upon itself in a orgy of hate and bitterness. Arlen Spector was one of the last gentlemen senators who came from a time when working with politicians across the aisle was not cause or being thrown out of your party. About the only one left is John McCain, and when he goes, the party will be a marginalized group of religious conservatives. 

Plus, right now they are just having a run of extraordinary bad luck. It was the Republicans who screamed and yelled a few weeks ago until Obama removed 850 from the stimulus package that was designated for enhancing the response to a Flu Pandemic. Ouch. 

See you in court tomorrow, and please wash your hands first. 

RUN FOR THE ROSES

Today is the 135 running of the Kentucky Derby. 

Friesan Fire is the favorite, but who wants to bet on chalk? Where's the fun in that? 

Lets look a little deeper.

Papa Clem at 13-1 is the horse everyone is overlooking. He had a blazing workout this week, and he runs well on a sloppy track. We may have a bit of rain here in Kentucky today.  He finished second to Freisan in Louisana, but this is a different race on a different track.  One of the top Jocks- Rafael Bejarano is on board, and we like that. 

The Florida horse is Dunkirk, who ran second in the Florida Derby. However, he has had a five week layoff, and he lacks the real credentials to compete here. 

I Want Revenge (which is not the slogan of Jeff Swartz's new campaign for Judge) is the class of the California horses. He won the Wood Memorial after a bad start, so his ability to come from behind is proven. However, he may be a bit of a stalker, but he has legitimate speed. 

So, if you want to throw out the favorites, here is our tri-fecta:

Papa Clem; I Want Revenge; and now you can take your pick- you can throw in Freisan, or Dunkirk, or a Bob Baffert entry- Pioneer of the Nile. 

Enjoy the race; have fun, and if we bump into Judge Ward and Eddie O'Donnell, who are rumoured to be out here,  at the finish line, we'll let you know. 

UPDATE- I Want Revenge has just been scratched. So we're going to add Baffert's horse- Pioneer of the Nile to our Trifecta.