When you see something that is not right, not fair, find a way to get in the way and cause trouble.
Congressman John Lewis
JUSTICE BUILDING BLOG
WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM. Winner of the prestigious Cushing Left Anterior Descending Artery Award.
The Florida Supreme Court has moved Laura Watson from the 17th Circuit bench for conduct committed before she became a judge. According to the opinion, which is unanimous and unsigned, the Court found that Ms. Watson engaged in conduct designed to help herself and her partner to the detriment of co-counsel and her clients in bad-faith litigation against Flo and Progressive Insurance Company.
The actions of Ms. Watson were especially egregious, and should ultimately result in her disbarment. The conduct started in 2002, and the investigation by the Bar started in 2012. Seeking to pull a Rick Scott (avoid prosecution for conduct committed before taking office by getting elected) she ran for judge. Much to her displeasure, upon her election the matter was transferred to the JQC. She fought the charges against her with the scorched earth litigation style for which she was known. The docket is voluminous.
Jeb Bush and The Donald are in. Trans Fats are out. Judge Victoria Sigler is also out, retiring after a stellar career as a PD and Judge. More on her in another post. PUMP IT …OUT? County court is many things, but not the land of milk and honey. Or even just milk…. Female attorney before Judge Seraphin about to start trial. Recently had a child. We are reliably told that women in such situations need to …hmmm…pump breast milk every few hours just to ease the discomfort. The Judge's initial reaction: "too bad". "Plenty of defendants have sat here uncomfortably." The judge then opined that another lawyer should take over the case and he could see no reason for giving the lawyer special treatment. Eventually reason and common sense and some harsh off the record comments from other female court staff members brought the judge around. The case was continued as the rumors spread and the media began asking questions.
We're the greatest country. Yup. American exceptionalism. Can't run for president unless you believe with all your heart and christian lord fearing soul that we are different and better than mere mortals and the countries they inhabit with their ordinary bodies and souls. Here's an article that caught our attention. Exceptional. Gregory Orr remembers fifty years ago on June 14, 1965, when he marched in a protest in Jackson, Mississippi, one of fifty exceptional states. IT was 50 years ago tomorrow, on June 14, 1965, that I was arrested in Jackson, Miss., for parading without a permit. I’d driven south alone, at 18, from my home in upstate New York, as a volunteer in the civil rights movement on break from college. I was part of a group of some 500 men, women and children, ranging in age from 6 or 7 to 80. Those arrested were mostly black Mississippians, but also white movement volunteers like me. .. We walked two abreast on the sidewalk, a long line headed toward the Capitol. When each pair was told to disperse by a uniformed city police officer, we either did so or were arrested and then ushered onto closed trucks — all under the eyes of reporters, all calm and as civilized as such things can be. The 30 or so of us packed into our designated truck whizzed through town with a motorcycle escort, ignoring all stoplights, heading (we assumed) to the city jail. We were wrong. When the doors opened, we faced a gathering of Mississippi highway patrolmen, each gripping a billy club. They wore blue motorcycle cop helmets, mirrored sunglasses, badges whose identifying numbers (I’d soon see) were covered with black tape. They were grinning. We were dragged from the truck and beaten — shoved and clubbed, and kicked when we fell. After about 20 minutes, the beating stopped. If you were a woman or a child, once your paperwork was done, you were directed to the far end of this building, but each male was pointed to a small side door and told to exit. Out again, into the glare and a new discovery: I was facing a double line of about 30 troopers, and told to walk slowly between them, hat in hands. They clubbed me from both sides. The humiliation felt worse than the actual pain of wooden club against defenseless body. Then we entered another barn. For two hours, we were clumped in a bunch, surrounded by guards who’d periodically run toward us and swing randomly with their clubs. Hours later, we sat on the floor in the sweltering heat, waiting for mattresses, deep into the night. Sitting in rows five feet apart, bolt upright. The officers patrolled the rows. Any slouch or effort to stretch met with a swift blow or two. Then it happened. A patrolman stopped and loomed over a black kid next to me, who couldn’t have been older than 12. The kid was wearing a movement pin — a small, round tin thing, with one of our mottoes on it: either “Freedom Now” or “One Man One Vote,” I can’t remember. “Swallow the thing,” he ordered again. A silent minute passed. Was the kid resisting, or was his throat so dry and clenched with terror he couldn’t swallow even if he tried? I’ll never know. By then, other officers had noticed the commotion and come over. They calmed down their comrade, who by now was shouting. They persuaded him away from his lethal insistence. Maybe we are an exceptional country. But we are exceptional because of men like Gregory Orr and the men and women and children he marched with. It's not the exceptionalism that republican presidential candidates are preaching to Billy-Bob and Mary-Sue in the South Carolina primary. But nonetheless, we have some exceptional citizens. See You In Court.
RED LIGHT ... OR ... GREEN LIGHT ..... ON RED LIGHT CAMERAS .......
Today, in Courtroom 2-11, beginning at 10:30 AM, Associate Administrative Judge Steve Leifman will begin a two day hearing, (currently scheduled to continue on Tuesday, June 16th at 10:00 AM), on the issue of Whether Red Light Camera tickets can be prosecuted in Miami-Dade County.
In the case of City of Hollywood v. Arem, (4D12-1312, Oct. 15, 2014), the Fourth District Court of Appeal addressed a similar issue. That Court was asked: "Does F.S. 316.0083(1)(a) authorize a municipality to delegate and have a private vendor actually issue Florida Uniform Traffic Citations, when notices of violation, (also issued by the vendor), are not complied with, where the only involvement of the traffic infraction enforcement officer in the entire process is to push a button saying "Accept" after having reviewed the image of an alleged violation electronically transmitted by the vendor?". The Appeals Court was also asked: "And if the answer is in the negative ....., is dismissal the appropriate remedy?".
The Court answered the first Question: NO and they answered the other question: YES. The municipality did not have the authority to delegate the red light camera program to a private vendor, and therefore, all of those Red Light Tickets should be Dismissed.
While the 4th DCA made that decision exactly eight (8) months ago, Miami-Dade's Traffic Magistrates, (who serve under the direction of Judge Leifman), have been continuing cases in each of their courts, whenever a Defendant or their Counsel, has brought up the Arem case and asked the Hearing Officer to Dismiss the ticket. Each time, the Hearing Officer has announced: 'Judge Leifman has scheduled a Hearing on the Arem issues and once that decision is made, they we will set the tickets for a new Hearing date'.
Judge Leifman's decision, however he decides, will likely be appealed by the loser to the 3rd DCA. Several cities in Miami-Dade County have continued to use red-light cameras and pocketed million of dollars in fines as the result of this program. As just one example, the City of West Miami, which is only three-quarters of a square mile in size, has collected more than $1.7 million in red-light camera money over the past five years alone.
SO, YOU WANT TO BE A CIRCUIT COURT JUDGE .....
On June 30th, Florida's "first openly gay elected official", Judge Victoria Sigler, will retire from the bench. The DBR covers the story here. Judge Sigler became a County Court Judge in 1995 and was elevated to the Circuit Court by Governor Bush in 2000. For the past twenty years, she has been serving on the bench in Miami-Dade County. Judge Sigler began her legal career at the Miami-Dade County Public Defender's Office. According to Judge Sigler, "she has a house in Colorado, where she plans to volunteer as a park ranger in her retirement. She also will attend "adult band camp" to play trombone and tuba, and she's set to travel to Brazil, Cambodia, Vietnam and Thailand by the end of the year."
Good luck Judge Sigler and thank you for your service to Miami-Dade County.
The JNC has received a total of 20 applications; 16 from attorneys and four more from County Court Judges, to replace Judge Sigler:
Joseph J. Mansfield Elijah A. Levitt Alexander Spicola Bokor Karl S.H. Brown Griska Mena Rodriguez Luis Perez Medina Julie Harris Terry Lourdes Simon Jason Emilios Dimitris Charles Kenneth Johnson Carol Jodie Breece Mark Blumstein Ayana N. Harris Paula J. Phillips Lauren F. Louis John W. Wylie Wendell Mitchell Graham Norman Christopher Powell Flora M. Jackson Nydia Streets
ELECTION CENTRAL: WHO'S RUNNING FOR JUDGE IN 2016 ..... UPDATED
CIRCUIT COURT:
In Group 9, recently appointed Judge Jason Bloch has opposition from attorney Marcia Del Rey.
In Group 39, David Young has filed to run in this open seat. He currently has no opposition.
In Group 52, Carol "Jodie" Breece, Raul Perez-Ceballos, Elena Tauler* and Oscar Rodriguez-Fonts have filed to run in this open seat.
*We have made a decision not to print the name that attorney Tauler used to file with the Division of Elections, (hint - it's Hispanic), until she at least has the sense to provide the same name to The Florida Bar, the organization that gives her a license to practice law. She is also still using the name Elena Tauler in her other legal-business ventures. It is time for the voters of Miami-Dade County to not have the wool pulled over their eyes and to be told the truth about her candidacy as it relates to her name.
COUNTY COURT:
In Group 7, incumbent Judge Edward Newman has drawn opposition from attorney Lizzet Martinez. Ms. Martinez has already raised nearly $37,000 in just two months since her filing; (only $5,000 of which was her own money).
Judge Newman immediately kicked in $100,000 of his own money to fund his campaign. This would be Judge Newman's fifth run for office having previously won elections in 1994, 1998, 2004, and 2010. If Judge Newman decides not to retire, this would be his final run for Judge as he would be 65 years old in 2016. It will be interesting to see if the former offensive guard for the Miami Dolphins, who played for the team as a rookie when they won the Super Bowl in 1974, will be "forced" into retirement from the bench.
Ms. Martinez has been a member of The Florida Bar since 1997. She concentrates her practice in the areas of family and bankruptcy law.
Here is a question from the current FCAT: Pick the one word or phrase that doesn't belong: Innovation. Technology. Service. Dade County Clerk's Office. Advanced. Time marches on. There are Apps for everything. You can order a car-cab from your phone (Uber), food (hundreds of apps), games, shop on Amazon, watch movies on Netflix, read the Times, translate a foreign language, navigate with a map. All of these apps that interface with websites have one thing in common: ease of use. The experience on the web should make your life easier and your time at work more productive. Enter the Dade County Clerk's Office saying "not so fast pardner." It used to be pretty easy to look up your client's case. Then they updated the website. And in true bureaucratic fashion, the Clerk's office took a good thing…and made it worse.
Now, every time you do a search you have to try and decipher a blurry set of words and numbers and if you enter them in wrong, then your search is declined. Because apparently in China, there is a big need to know which Miami residents have been arrested for disorderly conduct. With that information, they can rule the world. First the Dade Clerk's website, then the South China Sea. Or as Mao said: "Political power grows out of the barrel of a gun and a slow website." The reviews are in, and if you follow the FACDL listserv, it's not pretty. Words like "asinine, stupid, dumb, idiotic, and awful, pepper the conversation….and that's just the people who designed it discussing it." Here are some actual quotes: "It sucks"; "I hate it"; "It slows me down"; "Drives lawyers nuts." And one judge who wrote "what's a website?" (That's a joke.) So take a bow Clerk's office. You've lived up to your reputation. The only left for us to report on is what we are sure is a high seven figure cost for adding the extra step that everyone hates. See You In Court where we have yet to be able to successfully log on to CJIS.
"LESS FILLING…" "GREAT TASTE…." Remember the ad campaigns for Miller Lite?
Dear Membership:
As many of you know the State Attorney’s Office has recently begun a drug diversion program through Advocate that some are referring to as “Drug Court Lite.” There has been some confusion as to how it is being implemented and who qualifies for it. In hopes of alleviating this confusion the members of the FACDL/SAO liaison committee asked to have the State Attorney clarify exactly how the program works. At our last meeting on June 4th Chief of Staff Esther Jacobo was kind enough to answer our questions and provide clarification as to the design of the program.
In summary, “Drug Court Lite” is not offered by the in court ASA- so don’t ask them. Rather, when a client is offered and accepts Drug Court as a diversionary plea they report to Drug Court as usual and are evaluated by the drug court program. If they are determined to be “low risk/low need” by the drug court evaluator they can then be placed in “Drug Court Lite.” “Drug Court Lite” is monitored by The Advocate Program not by the “Drug Court.” Your client will only be required to appear in court for the initial evaluation and then again to accept their nolle pros or other agreed upon resolution- hopefully. The program itself is geared specifically toward low need offenders and is not designed for people suffering from significant addiction issues. While the enrollees of “Drug Court Lite” are randomly screened for drug use the classes are more focused on how to make better life choices and not end up back in the criminal justice system as opposed to more classic drug treatment and assessment. The program is designed to run no less than 3 months; however, it is important that you do not give a finite timeline to your client as positive drug tests and failure to attend meetings can result in extended enrollment. If a client does test positive or violates they are then given the option of attending the full drug court program or returning to division.
Below please find the guidelines and procedures as set out by the State Attorney’s Office.
(Rumpole says…turn back now before it's too late!!)
·When defendant is (sort of a weird singular reference. Wouldn't it read better if it was "when defendants are..?) referred to drug court for screening there is no guarantee that he/she will be eligible to go into the Advocate program
·If they do qualify for the advocate program the following will be required.
oThe time frame is no less than 3 months.
oPsycho –educational course (no more than 12 hours) For some defendants the course is available on line (A psycho educational course sounds only slightly less terrifying than a psycho-ex boyfriend or girlfriend)
oRemain arrest free (what's the opposite of arrest free? And by definition when arrested aren't you no longer free?)
oNo drinking or drugs (Rumpole notes that people can only last a few days without consuming water, which they usually drink. This doesn't look good).
oRandom drug testing (are they testing for random drugs or testing randomly? It's not clear. "hmmm…he's positive for insulin, coreg and xenacore- I'd say we have a diabetic, hypertensive person with high cholesterol on our hands.")
oAll supervision will be done by Advocate and the defendant will not have to report to court until he successfully completes
·If the defendant is referred to advocate and violates any of the conditions he will be bounced out and may continue in full drug court or decide to go back to division.
·If upon screening the defendant is not eligible for advocate but is eligible for drug court he/she may choose to stay in drug court or go back to division
·There is NO PREP for the screening. We cannot give you the criteria that will make defendant eligible for the shorter program. The screening is done by trained professionals with an evidence based tool. (translated - "oh magic eight ball, which shall it be? drug court or drug court lite? ")
Thank you to Esther Jacobo and the Ms. Fernandez Rundle for the clarification. (And Rumpole's thoroughly unhelpful snide comments).
If you read one article today, this week, or this month, read Against His Better Judgement a Washington Post article about US District Judge Mark Bennett of Iowa and his views about minimum mandatory sentencing.
For more than two decades as a federal judge, Bennett had often viewed his job as less about presiding than abiding by dozens of mandatory minimum sentences established by Congress in the late 1980s for federal offenses. Those mandatory penalties, many of which require at least a decade in prison for drug offenses, took discretion away from judges and fueled an unprecedented rise in prison populations, from 24,000 federal inmates in 1980 to more than 208,000 last year. Half of those inmates are nonviolent drug offenders… Iowa’s busiest federal court, the judge who has handed down so many of those sentences has concluded something else about the legacy of his work. “Unjust and ineffective,” he wrote in one sentencing opinion. “Gut-wrenching,” he wrote in another. “Prisons filled, families divided, communities devastated,” he wrote in a third. Bennett tried to forget the details of each case as soon as he issued a sentence. “You either drain the bathtub, or the guilt and sadness just overwhelms you,” he said once, in his chambers, but what he couldn’t forget was the total, more than 1,100 nonviolent offenders and counting to whom he had given mandatory minimum sentences he often considered unjust. That meant more than $200 million in taxpayer money he thought had been misspent. It meant a generation of rural Iowa drug addicts he had institutionalized. So he had begun traveling to dozens of prisons across the country to visit people he had sentenced, answering their legal questions and accompanying them to drug treatment classes, because if he couldn’t always fulfill his intention of justice from the bench, then at least he could offer empathy. He could look at defendants during their sentencing hearings and give them the dignity of saying exactly what he thought… “Hell on earth,” he said, explaining what just five minutes as a visitor in a federal penitentiary could feel like, and he tried to recall those minutes each time he delivered a sentence. He often gave violent offenders more prison time than the government recommended. He had a reputation for harsh sentencing on white-collar crime. But much of his docket consisted of methamphetamine cases, 87 percent of which required a mandatory minimum as established in the late 1980s by lawmakers who had hoped to send a message about being tough on crime.
From: Rumple (semi-influential legal blogger) To: CEO's Corporations RE: Just stop it The Scene: Burger Fi (we like it green-style with the lettuce replacing the bun) R: I'll have the burger, green style, with onions, and tomatoes. Counter person: Ok, burger with onions and tomato, green style. Would you like mushrooms with that? R: No. Counterperson: French fries? R: No. Counterperson: A shake? R: Just stop. I have spent a moment reviewing the menu. I can read. I didn't walk in here and order and forget french fries or a shake. Enough already with the ridiculous up-selling. Not one time has anyone offered us french fries and have we said "OMG thank you so much. I totally forgot to order french fries." This up-selling demeans your workers and it causes us resentment and makes us less likely to return. And it wastes our time. Thirty years ago cars salesmen were trying to sell us floor mats and undercoating. Today Starbucks won't sell us a small cup of coffee without informing us that for thirty cents more we can get a vente. Really? We're already paying five bucks for a cup of coffee. Do you think we ordered the small because we didn't want to pay the extra quarter? Just stop it. Secretariat. The Belmont is a mile and half. The test of champions. The long race standing between a good horse and a horse for the ages. Affirmed and Alydar battled it out in a classic stretch run in 1978 before Affirmed stuck out a nose and won the triple crown. No horse has done it since. And none have done it better than the legendary Secretariat who ran it in a record 2:24. a record that stands today and which broke the prior record by over two seconds. As you will see, Secretariat was so dominant that the camera had to pan back to get the rest of the field in the picture.
Criminal law is an imperfect field. We accept that any human endeavor comes with human frailties and imperfections. What is harder to accept is that in this day and age when almost every criminal conviction carries a state prison minimum mandatory sentence (because a twenty five year old prosecutor is more trustworthy and more able to decide someone's fate then a fifty or sixty year old judge, right?) that knowing the problems that lead to hundreds if not thousands of wrongful convictions a year, Florida chooses to do nothing about it. Like Global Warming, False Confessions and Mistaken Identifications are known problems. They exist. The arctic is disappearing, and DNA evidence is scientifically exonerating thousands of people who were convicted with false confessions and by eyewitnesses whose identifications were knowingly or unknowingly tainted by sloppy police work. Like a presidential candidate at a Christian Values Society meeting in Iowa primary season ("I believe in the literal bible and will never accept humans evolved from monkeys!") Florida continues to (mis) place its faith in a jury system that accepts flawed evidence and wrongfully convicts innocent people. And if you think abolishing the death penalty will solve matters, then go spend ten years of your life in prison for a crime you didn't commit and then let us know how you feel. New York however, has stepped up to the plate as reported in this NY Times Article.
After years of debate and study, a rare coalition of the New York State Bar Association, the District Attorneys Association of New York and the Innocence Project proposed on Tuesday that the state adopt practices to reduce the chances that juries would be swayed by mistaken eyewitnesses or false confessions.
Witnesses would be shown photos of
possible suspects by an investigator who was not handling the case, with the
goal of eliminating even inadvertent hints or cues about the “right” answer
from detectives who might have a suspect in mind.
Once an identification has been
made, witnesses would be immediately asked how certain they were of their
choice. Witnesses often become more confident over time, so a shaky choice at a
police lineup hardens into concrete certainty at trial. A review of 161
wrongful convictions found that 57 percent of the eyewitnesses had not been
certain during the initial identifications but had no hesitation when
testifying much later during trials,
“Evidence indicates that an
eyewitness’s level of confidence in their identification at the time of trial
is not a reliable predictor of their accuracy,” the National Research Council
found in a major study released in October.
Uncertain witnesses who are given
positive feedback about the identifications — “You did great” or “He’s a bad
guy, we thought it might be him” — also become more confident about their
choices, even if they are wrong, according to a study by Gary L. Wells, a
psychologist at Iowa State University.
Among the proposals made on
Tuesday, the police would be required to videotape the interrogation of
suspects in major felonies. For many years, video cameras were turned on only
when a suspect was ready to confess, and there was no record of the hours of
interrogation that might have preceded it. Some police departments have started
to tape the questioning, but it is not practiced consistently across New York
State or even within departments.
“Misidentification and questionable
or unreliable statements or confessions are two of the leading causes of
wrongful conviction,” said Frank A. Sedita III, the Erie County district
attorney and the president of the state’s District Attorneys Association. “What
the bill does is simultaneously promote the protection of the innocent and the
just prosecution of the guilty. And when you can do both at once, that enhances
the integrity of the criminal justice system.”
“For those doubters today, five years from now, we’ll all agree this was a smart thing to do and the right thing to do,” Cyrus Vance Jr., the Manhattan district attorney, said.
Herb Smith, retiring after a stellar career as an Assistant Public Defender won the Miami FACDL's lifetime achievement award. Well done Herb; well done indeed. Manny Alvarez won the Against All Odds award for his amazing defense of former FBI agent John Connolly. Perfect award for this case and Manny's work. Federal Judge Marcia Cooke won the Gerald Kogan Judicial Distinction Award. Love Gerald Kogan. A Miami guy who made it to the Florida Supreme Court and never forgot his roots. And of course who doesn't breathe a sigh of relief when their federal case ends up in Cooke's division? And two PDs- one state and one federal won the Gregg Wenzel Young Lawyer's Award- Damaris del Valle from the state PDs office and Christy O'Connor from the feds. Can't say that we know them….but what an honor to win an award named after Gregg Wenzel. Congrats all.
