HAPPY BIRTHDAY

She's 90














And he died 400 years ago.



It's better to be in England, now that spring is here. 
Events at Stratford-upon-Avon this weekend.

WHEN OA AT THE SUPREME COURT GOES BAD 
Slate has the uncomfortable details here (h/t Mr. Markus).

Our read: The Supreme Court wants to require warrants in DUI blood tests for certain, and maybe even breath tests, but no competent lawyer can give them the facts they need. 

Interesting side note: the court talks a lot about "insta-warrants"- warrants obtained electronically in minutes,  and we're just wondering- original intent and original text wise- in which federalist paper that was discussed? 


EXCLUSIVE FIRST LOOK

EL CHAPO CAFE

Photo reprinted without the permission of El Chapo Cafe, but sent in by alert reader Kenneth Weisman, at great personal expense.

DOCTOR (?????) STANFORD BLAKE .....

THE CAPTAIN REPORTS:

"DOCTOR" STANFORD BLAKE .....

 "I thought I was going to be a dentist.

    I don't know why. After three chemistry

         courses I said, 'This is not going to work.' "

The year was 1966. It was a fun time to be on campus at the University of Florida. But for freshman student Stanford Blake, it was all business. That was until he barely survived his first year of science classes. Then he switched to majoring in Advertising, even winning a national competition and earning job offers from NY ad agencies.

Fortunately for us, Stan didn’t want to live in cold weather NYC and really didn't see his future in advertising. NY’s loss - our gain. He went to the UM law school, and in his final year there, he interned at the Miami PD’s office. "He loved it "from the first day I went to court," Blake said.

"Your deodorant was failing you in 10 minutes,

but afterward you would say, 'What a rush!'"

He was hired by the PD’s office and spent five years there. Then 16 more in private practice as a criminal defense attorney. While he always thought that he might run for Judge one day, it wasn’t until Operation Court Broom that Stan thought seriously about it.  He said:

"My disillusion with everything really made me move it up," .

"I was so upset that judges were on the take, and I said,

'Sometimes, if you're not part of the solution, you're part of the problem.' "

Elected in 1994, he took the bench the following January. Now, 21 years later, he reflected on his career in a story this past weekend in the DBR that can be found here.

In 1996, he took a brief leave from the bench to donate a kidney to his brother.  He took another medical leave last year after doctors diagnosed him with cancer of the tonsils; which is related to the HPV virus and in men is often contracted through oral sex. He likes to joke about that scare:

"Lisa (his girlfriend) said I'm the only guy

who can brag about how he got cancer," Blake said.

It won’t be long before Judge Blake retires from the bench and goes the mediation route. While he is still on the bench, all of us in the criminal justice community want to say while we can: "Thanks for all the great memories" and all of your great years of service on the bench working for the citizens of our community. Well done my friend, well done.

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

　

JUDGE JACQUELINE SCHWARTZ IN TROUBLE AGAIN

We interrupt our Donald Trump like coverage of the suspension of Judge Schwartz to remind the denizens of the REGJB that there is a lunch and learn Wednesday. 

The topic, and we couldn't make this up if we tried, is...
"Defending clients with professional licenses."

Hmm.. truth is stranger than fiction. 
Sometimes the blog spirits shine on us. 
Go eat and learn. 

DCBA- Lunch and Learn - April 2016

UPDATE: Judge Schwartz has been suspended. Initially the suspension is with pay. In other words, unlike the rest of the real world, she doesn't have to work for her paycheck. But we understand, she is a constitutional officer (as difficult as that may be to choke down) and there has to be a procedure in place for the Supreme Court to suspend her without pay. The below order requires the parties to brief that issue. 

Judge Schwartz suspended

THE DBR REPORTS:

Disciplinary troubles mounted Monday for Miami-Dade County Court Judge Jacqueline Schwartz, who was accused of being intoxicated in court and starting a drunken confrontation with staff and police at a Miami restaurant...

Thee latest incident, according to the state Judicial Qualifications Commission.

Witnesses said the judge "took the bench and presided over a criminal traffic docket while impaired" March 28, the commission charges said.

"After approximately 90 minutes, Judge Schwartz was removed from the bench by the chief judge and sent home. At first, Judge Schwartz stated that she was OK to drive herself home," the complaint said. Her bailiff drove her home in her car, but the judge couldn't remember her address or give directions and didn't recognize her bailiff or realize she was in her own car.

There was also an incident on March 18 at the Ergon Greek restaurant where the police had to be called and the judge was removed and appeared to be intoxicated, cursed at the police officers, threatened them, told them she was a judge, and threatened to have a waiter who would not serve her alcohol fired. 

Most disturbing of all is that Judge Schwartz "self reported" the incident to the JQC in which she totally and completely denied anything unusual occurring. This despite the fact that patrons of the restaurant individually called 911. 

Probable cause has been found. Things look dim. 

There are times we are hard on people and there are times we are not. In the pages of this blog recently we have refused to publicize the name of a prosecutor arrested. We said it was personal incident and we didn't want to pile on. We distinguished the arrest from an incident that would occur during the time someone was at work. 

Judge Schwartz was impaired on the bench. (Allegedly). She was removed from the bench by our chief judge while trying to preside over a trial. There was a rumor she locked herself in her chambers. Most disturbingly, Judge Schwartz apparently attempted to drive home but was stopped by police at the courthouse. 

We are by no means DUI experts, but isn't there case law that allows for the arrest of an individual who is impaired and has car keys and is going to their car under the theory they are in actual or constructive possession of their vehicle?

Was Judge Schwartz granted a courtesy that normal clients, defendants, lawyers, have not been granted? 

Enough is enough. Whether she has an alcohol problem or not, this is a judge who is consistently rude to people, who flouts her position as a judge outside of court and during the time she has nasty interactions with the public,  and has firmly demonstrated in our mind that she does not have the ability, temperament and judgement to be a judge.  She should do us all a favor and resign. If she doesn't resign, she should be removed. 

And the Miami Herald should cringe that they endorsed her in the last election and they should issue a retraction and admit they got it 100% wrong. 

Judge Schwartz's behavior is an embarrassment and brings discredit to the legal profession and the judiciary. 

Here is the complaint. 
Jeff Feiler, Esq., for the defense. 

2016-655_notice_78411

Dr. Bruce Hyma Dade ME has Passed Away

David Ovalle and the Miami Herald have the sad news here, that Dr. Hyma, known to a generation of prosecutors, defense attorneys, judges, and more importantly-the next of kin of the deceased- as a kind, honest, decent and superb medical examiner has passed away. 

As the article points out, Dr. Hyma joined the Medical Examiner's office when it was led by the legendary ME Joe Davis and Dr Hyma became the chief ME where he left his mark on the office, the court system, and the bereaved.

IT'S BAIL BEFORE JAIL

There's a phenomenon occurring in our criminal courts- the use of rap lyrics by prosecutors against defendants. 

Here is an interview with Dr. Erik Nielson who has a masters in Shakespeare and a doctorate in English Literature. 
The article is here, and the highlights with the yellow below are original (sorry, they're annoying)

Rap lyrics are being used in three main ways: 1) They’re treated as confessions if they’re written after the crime. 2) They’re treated as proof of intent if they're written before the crime. 3) They’re classified as "threats"—the lyrics are the crime themselves.

Rap is the only fictional genre that’s being used in court like this. And its use is undoubtedly racially motivated since only one or two cases involved white defendants.

The one case Nielson cannot let go of involves No Limit’s Mac, who is currently serving a 30-year sentence for shooting a man at a concert. Not only were Mac's lyrics used in court, the prosecution spliced lyrics together from two different songs to change the meaning of what he rapped.

Judges aren’t supposed to allow “evidence if it’s prejudicial,” but they’re misled by police and prosecutors. Maybe it’s because they’re older, or maybe it’s because they’re just as prejudiced as juries.

FAILURE

The most important lesson of life is failure. 

The measure of a person is not how many times they are knocked down, but how many times they get back up. 

It's important that the best among us fail. It gives them perspective on the rest of us. When the best fail, they judge those who come before them in the light of their life's experiences. We're not just talking about judges here. Parents who see their children repeating the mistakes they made thirty years ago; the politician who knows failure and humiliation and even personal indiscretion, who is given a second chance. And yes, the prosecutor who fails and commits a crime. 

We live in a time of instant information, where failures are recorded on the internet for time immemorial and where the politics of absolutism demand that leaders, officials, candidates, presidents, judges, et.al, all tow the religious, moral and philosophical line of their constituents without error or deviation. 

General Petraeus was forced out of the CIA because of an affair he had in Iraq during his leadership of the surge that finally ended the fighting. 

Dwight Eisenhower, a lowly Lieutenant General from Kansas was plucked from obscurity by George Marshall to become the Supreme Allied Commander of the Armed Forces in Europe for World War II. It was upon Eisenhower's shoulders, and his alone, that he made perhaps the momentous decision of the 20th century, when on June 2, 1944, he postponed the invasion of Europe from June 5 to June 6. On June 5, he gave the final go-ahead, sending 4,000 warships and 160,000 men into battle. On May 30, 1944 the British Commander of the entire Airborne Operation asked Ike to cancel the paratrooper drop of 18,000 men, arguing that he would lose 90% of them. Eisenhower needed the airborne to control the bridges and access to the beaches and keep the German army from throwing the invasion back into the sea. Eisenhower called the decision to go with the airborne assault the toughest decision of his life. 

Eisenhower had a mistress throughout most of WWII. And yet he performed his duties superbly, and became president of the United States. 

Would Eisenhower be court-marshaled today? 

Several Presidents had mistresses before and during their time in office. 

Lincoln, surely our greatest president who suffered the most in office and made the most difficult and loneliest decisions of any president, was most certainly manic-depressive. And yet Lincoln saved the Union. The greatest figure of the 20th century- Winston Churchill also suffered from depression. Would we be better off today if Lincoln and Churchill were disqualified from service? 

Franklin Roosevelt served almost sixteen years as President, taking the country from the depression to the edge of victory in WWII. Roosevelt had a mistress. His affair was discovered by his wife well before he became president. 
None of these great men would have withstood the intense scrutiny today. 

Our scrutiny of leaders, achievers, and those who dare, weeds out the best, and leaves us with the most mediocre. Perhaps they've never had an affair or a bout of depression, but they are deemed "morally pure"- the only crucible that now seems to matters. 

 Given the choice, the last person we would ever want to sentence us would be a judge who has never failed or erred in their personal choices. It's their life experience and not their pretense at perfection that gives them the perspective to do their job. 

How many Supreme Court nominees in the late 1980's and 1990's were disqualified because they may have smoked marijuana? 
Would a brilliant female jurist who had an abortion be disqualified from service today?

"Let he who has not sinned cast the first stone."

Wise words from a failed carpenter. The son of a single woman. A man who consorted with a prostitute.

See you in court. 

BOB LEVY HAS PASSED AWAY

Longtime political kingmaker (and Judge maker) Bob Levy has passed away. 

From the Herald:

Bob Levy, a fixture in Florida’s Capitol for four decades as a lobbyist for a wide array of causes, died Tuesday in Tallahassee. He was 67 and had been battling cancer.

A long-time resident of Miami Beach, Levy had deep political roots in Miami-Dade County and founded a successful lobbying firm, Robert M. Levy & Associates. He lobbied for a number of cities, including Homestead, Doral and Florida City. He built a cottage industry as a consultant for scores of Miami-Dade judicial candidates and mentored dozens of young lobbyists, many of whom are now elected officials or have successful lobbying practices of their own. He called them “Levites” and they were part of his “tribe.”

A skillful storyteller, Levy was known for gathering people on Sundays in Tallahassee for “family dinner.” He was a vodka aficionado — particularly fond of Ketel One — and he was the pioneer of Miami-Dade Days, an annual civic fly-in to Tallahassee. On that day each year he would don a big white apron and personally serve heaping bowls of paella to hungry guests in the Capitol courtyard.

Levy called Dade Days “a way of bringing a little bit of Miami to Tallahassee.”

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article71441502.html#storylink=cpy

SO MUCH FOR PEOPLE NOT READING PRIOR POSTS

Our extremely well written golf post on Jack Nicklaus's amazing win at the Masters in 1986 was roundly ignored, while the comments came flowing in on the prior post about the Dade Prosecutor arrested in Broward for DUI and LSA. 

Reports indicate breath and urine were refused. 

Reports indicate that the prosecutor may have threatened the job of the arresting officer. If true, this would be a disappointing turn of events. 

Because there are no coincidences in life, the case has been assigned to embattled Broweird Judge Destry, who is being challenged by another Dade ASA. 

Truth is stranger than fiction. 
And Broward is one of the strangest places on earth. 

See You In Court. 

YES SIR! NICKLAUS WINS SIXTH MASTERS IN 86

Jack Nicklaus was 46 in 1986. He was too old. Nobody wins the Masters at the age of 46. 
During the week,  one of his friends cut out a newspaper article declaring that Nicklaus was too old. He taped the article to the refrigerator in the house Nicklaus had rented for the tournament. 

Jack was over the hill. Even Nicklaus may have suspected his days of competing were over He had his son Jack on the bag with him for the tournament. 

By Sunday Nicklaus was 4 behind and not even in the discussion. Seve Ballesteros was in the lead. Bernhard Langer and Greg Norman-the White Shark- were hunting for the Green Jacket. On that magic Sunday five different players had a share of the lead as play unfolded. 

As he approached Amen Corner,  birdies at 9,10,11 had put Nicklaus back in contention. But a bogie at 12 dropped him three back.  

But there was life in the Golden Bear. 

Sunday April 13, 1986. The fifteenth at Augusta. The start of the greatest back nine charge by the greatest golfer the sport has ever seen. As he approached his second shot on 15, four behind Seve, Jack turned to his son and asked how far a three iron would go on his 202 yard approach shot? Nicklaus chose a four iron and lasered it twelve yards from the hole. He drained the putt for an eagle three and now he was two behind. The crowd swelled. The Bear was on the prowl. 

At the par three sixteen Jack hit a sweet five iron. As the ball was in the air he bent down to pick up his tee. "Be right" willed his son Jack out loud- right of the hole would leave him with an easy uphill put. 

Without even looking at the ball Nicklaus said "It is". And it was. Jack sunk the birdie putt and now he was minus three over two holes and walking to the seventeenth one behind the leader. 

The Seventeenth. Augusta. 1986. Jack Nicklaus. It still gives us chills. 

The crowds were now out of control. There is a wonderful documentary called 86 in which everyday people recount what they were doing as Jack made his charge. 

A man convinced his wife not to get on their honeymoon flight to Hawaii. There would always been another flight, but probably not another Masters charge by the Golden Bear in his winter. 
A group of three friends- one now a judge- pulled into a truck stop in West Virginia and convinced the truckers to switch the channel from a car race to just check in on the Masters. An hour later it was standing room only as Jack walked to the 17th. 

And then there was the mother whose teenage son Craig Smith had died  fifteen years  earlier at age 13 of a rare and  painful bone cancer. Nicklaus had been his favorite golfer and he wrote a letter to Jack and they developed a friendship. When the boy told Jack he wore his lucky yellow shirt every Sunday for Jack, Nicklaus started wearing a yellow shirt on Sundays as well. Nicklaus told him that his yellow shirt would a secret just between them.
And there was Jack, in his yellow shirt, playing the final round of the Masters. The shirt a tribute to his young friend who had died many years before. And there was Craig Smith's mother and father, watching and crying. 

If you don't do anything else today, watch the Yellow Shirt video here. It's just a few minutes, but it shows the humanity of a great athlete. A humanity all too missing in the stars of sports today. 

As he walked to seventeen, a roar went up from the crowd. Seve had hit his ball in the water at the fifteenth. Then he bogeyed the hole. At age 46, written off and forgotten, the best golfer ever was walking to the seventeenth tee, tied for the lead in the Masters. 

 The man who changed the numbers on the board was shaking as he posted the score. The crowd was roaring. And the Golden Bear had a little more magic left on a spring Sunday at Augusta. 

Off the tee at seventeen Nicklaus was way right. But he was still where he wanted to be on his approach. His second shot landed softly on the green and he had an eighteen footer for birdie. 

There's a series of photos as Nicklaus comes out of his stance, watches the ball; aims his putter willing the ball to the hole and then raises it in victory. The putt read as if it was breaking to the right. But Nicklaus believed nearby Ray's Creek would affect the grass and the break and that a straight approach would work. It did. 

You can see the photo above. 

Those who heard it swear they have never heard any noise like it before or since. It was a roar. A roar of admiration and love and shock and joyful surprise that the golfer they loved since he had won his first Masters in 1961 was now winning his record sixth Masters and a record eighteenth majors. Records that have not and probably will not ever be broken. On CBS television Verne Lundquist made the call at seventeen a historic one with a resounding "Yes Sir!" as Jack raised both arms in triumph. 

We don't watch much sports any more these days. A few baseball games. A football game here and there. There is so much more to life than sitting and watching sports. But there is magic in a Sunday Masters. Magic that was forever captured on a wonderful spring day in April 1986. Magic that we tune in for to see. 

See You In Court tomorrow. 

DADE PROSECUTOR ARRESTED IN BROWARD FOR DUI, LSA

Yes, a Miami-Dade Prosecutor at the DC level was arrested in Broward Friday evening for DUI, LSA with property damage, and child neglect because his/her two children were in the car. 

No, there is no reason to re-print their name here. It's already been splashed through the local media. This is the type of event that becomes difficult to live down, even years later and there is no reason for us to pile on a preserve it in perpetuity on the web. 

We will NOT print comments with the name of the prosecutor. 

Lawyers have a disturbing tendency not to read instructions, so we will write it again: 

We will NOT print comments with the name of the prosecutor. 

So revel in your Schadenfreude and get on with your life. 

Enjoy the rest of the weekend. 

See You In Court. 

THE ZEN OF MISTRIALS

Silence can be golden. It can be a powerful courtroom weapon. (ASA John Kastrenakis sitting silently in court for several minutes during closing argument in the Joyce Cohen murder trial. (Now Judge)  Kastrenakis was showing to the jury the impact of how long the defendant waited to call the police after her husband was killed-by hit men she had arranged. Go to West Palm and ask Judge K about it. He will be happy to tell you the story.) 

Which brings us to Merchant v. State, where one Dwayne Merchant was on trial for first degree murder. As his fate was in the hands of the jury, the bailiff brought to the court's attention that the alternate was the brother of one of the jurors deliberating. 

The court had a bit of a meltdown. It confronted the two jurors and chastised them for not mentioning they were related when the court inquired at the beginning of voire dire if any jurors knew anyone else. 

But what the court didn't do was: 1) Actually inquire of the jurors if they were related;
2) Ask the jurors if they had spoken about the case;
3) Ask the defendant if he consented to the mistrial. 

As the scene unfolded, the defense attorney wisely remained silent. The court declared a mistrial. The defense then moved to dismiss the case for double jeopardy. Judge Tinkler-Mendez denied the motion. Au contraire said our 3rd DCA and Judge Emas: the motion should have been granted. The conviction was reversed and the case remanded with instructions that Mr. Merchant be discharged. 

A Rumpole "Well done. Well done indeed." goes out to appellate ace Andy Kawel for the resounding victory. 


Thereafter, the case was reset for trial. Merchant filed a motion to dismiss the indictment, contending that he did not consent to the mistrial, that there was no manifest necessity for the trial court’s sua sponte declaration of a mistrial, and that retrial was therefore barred by double jeopardy. In opposition, the State contended that by not affirmatively objecting to the mistrial, and in absence of demonstrable bad faith by the State, Merchant had essentially consented to the mistrial. The State did not agree with the defense’s characterization that the court declared a mistrial sua sponte

As noted by the United States Supreme Court in United States v. Dinitz, 424 U.S. 600 (1976), and reaffirmed by the Florida Supreme Court in Thomason, The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant's request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. Even when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire “to go to the first jury and, perhaps, end the dispute then and there with an acquittal.” Thomason, 620 So. 2d at 1237 (quoting Dinitz, 424 U.S. at 608.)

Doubt about the appropriateness of a mistrial is resolved in favor of the defendant, and the State “must demonstrate ‘manifest necessity’ for the mistrial, a requirement that has been part of this country’s jurisprudence since 1824.” Thomason, 620 So. 2d at 1237 (internal citations omitted). Manifest necessity requires that there be a “manifestly urgent and absolute necessity” for declaring a mistrial. Id. at 1239 (quoting State v. Grayson, 90 So. 2d 710, 713 (Fla. 1956)). Moreover, manifest necessity requires that the trial court evaluate and discuss available alternatives prior to declaring a mistrial where the defendant does not consent to such an action. “Manifest necessity for declaring a mistrial without the defendant’s concurrence may be demonstrated only if the trial court has considered and rejected all possible alternatives.” Torres v. State, 808 So. 2d 234, 235 (Fla. 2d DCA 2001). See also Thomason, 620 So. 2d at 1238 (observing that manifest necessity requires “trial judges, at the very least, to evaluate and discuss available alternatives before declaring a mistrial over the objection of the defendant.”) 

And now we get to the power of silence. In the face of Judge Tinkler-Mendez declaring a mistrial, the defense remained silent. 

The State contended below, and on appeal, that Merchant should be deemed to have “consented” to the mistrial because neither he nor his counsel voiced an objection, thus waiving his right to later assert a double jeopardy bar to retrial. However, this position is without merit, as the law on this point is well-established: a defendant’s mere failure to object to a declaration of mistrial is not tantamount to consent. See State v. Grayson, 90 So. 2d 710, 713 (Fla. 1956) (noting that “silence of the defendant on trial for a crime or his failure to object” does not constitute consent to the trial court’s declaration of a mistrial); 

Thus, absent the defendant’s consent to the declaration of a mistrial, retrial is barred by double jeopardy unless the State meets its “heavy burden to show that the mistrial was justified by manifest necessity.” Spaziano, 429 So. 2d at 1346. The record in the instant case reveals no manifest necessity for declaring a mistrial and further reveals that the trial court failed to evaluate, discuss or consider available alternatives before declaring a mistrial and discharging the jury. 

The trial court’s decision to declare a mistrial, without the consent of the defendant, appears to have resulted from a series of assumptions and inferences, rather than from competent record evidence. Even if we were to accept the assumption that Kira and Kevin are brother and sister, this surely did not—without more—necessitate a mistrial. There is nothing in the record to indicate that Kira and Kevin heard the trial court’s request, made to the entire venire at the commencement of the jury selection process, for jurors to notify the court if any prospective jurors knew each other. Similarly, there is no evidence in the record that Kira and Kevin discussed the testimony or evidence with each other, or otherwise violated the trial court’s daily admonitions to the jury.

Thus, the only information the trial court had before it was a statement from the bailiff that Kira and Kevin were siblings and that Kevin (having been discharged as an alternate juror) was waiting outside the courtroom to drive Kira home. This alone was hardly sufficient to warrant a mistrial. However, the court did not question the bailiff in open court or permit the attorneys to do so. The court did not bring Kevin Criado into the courtroom to question him or permit the attorneys to do so. The court did not bring Kira Criado into the courtroom to question her or permit the attorneys to do so. The court acknowledged the option of conducting an inquiry, but failed to engage in one.

The court did not ask the defense for its suggestions or inquire whether the defendant agreed to a mistrial. The court did not solicit or receive any input from the State or defense regarding any possible alternatives to a mistrial. Instead, the court simply declared a mistrial, concluding it had “no option.” 

The court’s conclusions were based almost entirely on assumption, inference and speculation. Nowhere are these conclusions confirmed on the record, particularly the central assumptions that Kira and Kevin are siblings and that they discussed the evidence or testimony during the course of the trial. The trial court erred in failing to conduct any inquiry and, by relying instead on assumption, inference and speculation, abused its discretion in concluding that a mistrial was justified by manifest necessity. 

At some point enough should be enough. The trial court was chastised repeatedly throughout this opinion. But even in the conclusion, Judge Emas hammers it home: 

The trial court’s failure to make an inquiry, develop a proper record, and consider alternatives before declaring a mistrial forecloses a conclusion that a mistrial was even warranted, let alone one supported by manifest necessity. Given that the mistrial was declared without the defendant’s consent, and in the absence of manifest necessity, double jeopardy precluded a retrial.7 We are therefore compelled to vacate the judgment and sentence on Count One of the Indictment, and remand with instructions to enter an order discharging Defendant as to Count One. 

All because the defense attorney kept his mouth shut when the court declared a mistrial. Well done. 

It's Masters Weekend, which means we will be at our favourite watering hole watching the action at Augusta. 

See you in court. 

RIFKIN ROARS

She's seen it all, and done it all, almost. She's handled the tough Miami murder cases for at least two decades. 

And now Dade ASA Abbe Rifkin wants to be a judge. She's done everything except take three hour lunches, sandwiched between denying a motion to suppress in the morning and a rule 3 in the afternoon. Now Ms. Rifkin will be challenging outspoken Broward Judge Matthew Destry in the upcoming judicial election. 

The New Times newspaper article is here.  Rifkin is quoted as saying: "It’s 2016 and an election year, so I’ve decided to take it to the people."

Wow. We just had a sixties flash-back. Taking it to the streets. Some ratty jeans; a tie-dyed shirt; a sit in; a march; tune in-turn-on baby. Feel the Bern!!

Anytime a Dade lawyer takes the bench in Browerid, it's a good day. 

See You In Court. 

ANOTHER TYPE OF PRISON

In the good ol' USA,  we believe in second chances. Except when it comes to crime and punishment. Then it's lock-em-up-and-throw-away-the-key.  With  5% of the world's population, the US has 25% of the world's prisoners. We spend 80 BILLION dollars a year on incarcerating prisoners in the US. 

Germany does it differently, as was detailed on Sunday night's 60 Minutes episode.  You can view it and the web story here. 

In Germany, prison isn't meant to punish, it's designed to mirror normal life as much as possible. Among the privileges enjoyed by German prisoners: immaculate facilities, organized sports, video games and keys to their own cells. Inmates can wear street clothes and can freely decorate their own cells -- keeping all sorts of household objects that American prison guards might consider dangerous. Prisoners who demonstrate good behavior can even leave prison for work or weekend getaways. Average Americans may balk at this level of freedom for convicted criminals, but prisons in Germany cost less and produce far fewer repeat offenders than U.S. prisons. 
...

In Germany, 75 percent of prisoners sentenced to life are paroled after 20 years or less, even Bernd Junge, a contract killer who shot a woman to death. Should Junge, who Whitaker meets on an unsupervised weekend furlough, be offered a future? "Yes, he should," says Joerg Jesse, a psychologist and the director of prisons in the German state of Mecklenburg-Western Pomerania. Jesse says German inmates deserve rehabilitation, not retribution, during their prison stays.

The real goal is re-integration into society, train them to find a different way to handle their situation outside, life without further crimes, life without creating new victims," says Jesse. "We cannot see the sense in just locking people up for their whole life. Your prisons will fill up and you'll have to build new prisons and so on and I think that was the situation in the U.S.

Germany spend less than the US per capita on it's prisoners and the recidivism rate is 50% less than the US. 
So Germany does it better and cheaper. And the main difference is that Germany believes the primary goal of prison is NOT punishment, but rehabilitation.  And that lack of "red meat" punishment can't make Bible-worshiping Republicans happy. After all, the bible says nothing about forgiveness and the goodness of people, right? 

See You In Court. 

THE CURIOUS INCIDENT OF RUMPOLE AWAY

Yesterday (Friday) afternoon we were in the Southern District of NY and after a late morning court contretemps we repaired to Per Se ( do not miss the Australian Kampachi and Avocado sorbet), where we had a truly spectacular lunch. That was followed by our viewing of the thoroughly enjoyable and remarkably staged "The Curious Incident Of the Dog At Night." We ended the night with a long enjoyable repast at Sake Bar Hagi. 

The point of recounting our daily travails is not to engage in a rodomontade of our daily existence, but to reflect upon the shortcomings of our South-Beach-centric existence in Miami. 

The glory of NYC, or Boston or Chicago, are the neighborhoods. 
The intensity of lower Manhattan, the elegance and refined and relaxed pace of the Upper West Side and Per Se, and the "showtime" excitement of Broadway. 

New York has existed for four hundred years. The imminent melting of the ice caps  means that not only will NYC not survive the next four hundred years (but many of the hot-dog vendors will-they are a tough bunch), but much of the 90,000 miles of US coast line is in peril of being submerged within the next 100 years. 

But don't worry about that too much. Ted Cruz and the Republicans are praying. 

Where were we? Oh yes. Culture. 

There is something to be said for spending a leisurely afternoon perusing Chinese Art and a century of crime photos (both exhibitions are currently at the Met) and then having a meal at something other than Chicken Kitchen. 

Sometimes it's just good to get away- especially if the client is paying for it. 

Enjoy the Weekend, and NO, Jeb Bush will not be running for State Attorney. April Fool. 

BUSH TO RUN FOR STATE ATTORNEY

UPDATE: NOT GUILTY We told you to go watch DOM in trial this week, and word is he knocked it out of the park before Judge Moore. The jury returned a NOT Guilty Friday Morning, David thus becoming the only attorney we are aware to get a misdemeanor battery dismissal on Wednesday, followed by a Not Guilty in Federal Court on Friday. Not a bad week. Well Done, Mr. Markus. Well Done indeed. 

BUSH TO RUN FOR STATE ATTORNEY!!!

Sources have indicated that Jeb Bush, last seen getting his butt kicked by Donald Trump, still has the "public service bug" and has set his sights on the Dade County State Attorneys Office. 

"It's something he thinks is winnable" said a source close to Bush. And he needs to bounce back. "Think Richard Nixon running for governor of California in 1962. Well, that's a bad example actually, because Nixon lost, but you get the idea."

A spokesman for the Dade County State Attorneys Office, speaking off the record, called Bush "Low energy." Hmm... good point. It's worked before. 

CLERK'S OFFICE TO CLOSE
Not satisfied with reducing services, the Dade County Clerk's Office has decided to close. "Closing the office will save the office tens of millions of dollars, which will allow us- in theory- to provide better service- if we were open. Which we won't be."


And finally, the day we have all been waiting for. You want a cup of coffee? A Bagel? A quick soup and salad over lunch? You got it! The El Chapo cafe on the first floor is opening today, April 1, 2016. and to celebrate, your tab is on us. We've generously provided a credit card and we are footing the bill to celebrate the opening. Just head on in and order anything you can. We'll get the tab. 

REAL GOSSIP
Sad. A judge. Been in trouble before. Flamed out in court last week. Locked themselves in chambers. Your chief judge was summoned to talk him/her off the ledge. Unofficially removed from courtroom duties for a bit. And now a story that they were out drinking late over the weekend. Cut off by the barkeep, another flame-out. The police were called. No arrest made. The kind of crap you see in Broward. It's only a matter of time. 

See You In Court. 

CLERK'S OFFICE TO CLOSE

David O Markus In County Court? See Below. 

The Clerk's Office to close???
Well, not quite. But we're heading that way. Think we're "foolin?" Check the date of the post: 3/31/2016

Changes are coming to the Clerk's office, none of them good. 

You want limited government? You got it. 

Just don't arrive on the 9th floor of the Dade County Clerk's Office with a question because the clerk who sits in the booth opposite the elevators and answers questions is being re-assigned. You have a question? Google it. 

In our milieu, there used to be two clerks in the attorneys room handling file requests. 

Now there will be one. 

There will be longer lines and increased wait time. 
As a smart and resourceful lawyer you are thinking that you will just use one the clerks at the windows for the general public. Think again. Attorneys are BARRED from using those services:
"Sir. Drop your file request form on the floor, raise your hands in the air and step away from the window."

Here is what our sources are saying: 

Right now visitors to the 9th floor (attorneys and general public) are welcomed by a deputy clerk who works in a general information booth directly across from the elevators (one window).  For the uninitiated, this clerk then directs people to one of many windows which are found in the various rooms of the 9th floor.  There are general rooms and an attorney room.  The general rooms include a payment/information room (many many windows), a bonds/bondsman room (a few windows), an appeals room (one window), and a case file room (many windows).  

Then there is one attorney room and it is dedicated to defense attorneys and prosecutors where they can file orders signed in court, review files, get dispositions, get certified copies of orders and request a variety of other services.  The attorney room has two windows.  Attorneys line up and wait to be helped by two great deputy clerks, normally Leida and Mike.  The line in the attorney room is often times long, but fluctuates throughout the day and generally moves quickly because there are two clerks who only work with the attorneys and have a great deal of experience (and patience) in dealing with them and their requests.  

Here is the plan: 

1. Close the general information booth which directs the public to the window or room that will most efficiently handle their need (so in the future they will be walking around aimlessly, waiting in line in one room before being directed to the appropriate room or a totally different floor, which the information booth clerk would have sent them to in the first place), 
2. Close one of the attorney windows, leaving only one window and only one clerk to handle all the attorneys and their requests.
3. Prohibit attorneys from using the various general public windows which offer the same services to the public but which are often times less busy when the attorneys need help the most (e.g. during the early mornings, as calendar calls come to an end, at the end of the day to file/certify last minute transport/modification orders).

This is happening because all the temp clerks were recently fired en masse and there are seven deputy clerk positions on the 9th floor that are not being filled.

Don't blame the clerk's office. Blame your "limited state government" officials who want to lower your state income tax (oh, wait- we don't have a state income tax) and reduce waste (like the clerk who answered the questions of befuddled citizens) and privatize services - like the new "El Chapp" Cafe which is opening, we are proud to announce- the 6th of never. 

By the way, there's a new El Chapo cafe diet craze sweeping the nation. No food. Weight loss. Amazing concept. Wish we thought of it. 

CALLED STRIKE THREE

There are no small cases. 
And thus, your favourite federal blogger and federal defense attorney David Markus found himself a stranger in a strange land on Wednesday: Before Judge Ed Newman in Dade County Court representing Major League Baseball player Delmon Young, who was charged in some affray with a valet. 

It was hardly Casey At The Bat. But the mighty state attorney's office dug in, and stood by as the Ump called strike three! The complaining valet didn't show up in court and the case was nolle prossed (technically- "never mind"). 

Mr. Markus, not used to standing in court surrounded by hoi poli of defense attorneys representing the mundane DUIs, expectorating in public, disorderly intoxication and such, still managed to maintain his dignity, and left the courtroom, only to be promptly interviewed by TMZ here. 

There is no rest for the weary or  busy defense attorneys,  and you can see Mr. Markus in more familiar terrain, as he is rumored to be in trial today before Judge Moore. 

See you in court. 

FORMER JUDGE AL SEPE DEAD AT 88

He was a renowned prosecutor, handling difficult murder cases, the famous jewel thief "Murph the Surf", and the infamous Mobster Meyer Lansky. 

He was appointed to the bench- the old Criminal Court of Record, resigned amid an allegation he propositioned the wife of a defendant (although, as David Ovalle's article indicates, there was insufficient evidence to prosecute), regained the bench as first a county court judge, and then appointed a circuit court judge, only to lose it all again in the great Miami judicial scandal known as Courtbroom. 

He had, to repeat the quote local attorney and former Judge Ted Mastos gave Ovalle in the Herald "More lives than Richard Nixon. He kept coming back." 

He was a certifiable REGJB courthouse legend, the good, the bad and the ugly. 

He was Alfonso Sepe. 

As an experienced prosecutor and then a judge, Judge Sepe was a mentor to many young attorneys, your humble blogger included. 

There was a lot to like about him. He looked like a tough prosecutor when he was prowling the halls of the REGJB. When he was on the bench, he looked like he had been plucked from a Hollywood movie about a judge. He carried himself like a judge, and as the Herald article points out here , he was an innovator in sentencing. 

But Al Sepe was all too human as well. 

In the end, Judge Sepe will answer to a higher court. Judge Sepe is the proof that while there are second acts in public life, there are  rarely third acts. 

His legacy is what you want to make of it. For many, it is one of wonderful heights, and the depths of hurt and betrayal. It is a constant reminder that even those who appear to be the best of us can be all too human. There is a lesson in that, somewhere. 

As a friend, we hope that he rests in peace. 

See you in court. 

BLAST FROM THE PAST

UPDATE:  Check out David Ovalle's article on Red, the homeless man who was an REGJB regular who died a few weeks ago. 
Here. 

Couple of big verdicts Thursday: 

Alex Michaels WON his case before Judge Johnson with the jury returning a not guilty verdict Thursday afternoon. Couple of hard fighting ASAs took the loss. 

ASA Gail Levine and company WON their before Judge Tinkler-Mendez case of the defendant who murdered retired Police Captain Bobby Yee. PDs for the defense.


Courtesy of @Davidovalle305 twitter: a Picture from the past. 

Can you name the players? We can. 

Hint: Woman behind the desk went on to be US ATTY General. 

From L to R: Sonny Meyers (the tough one to ID), David Waksman, Michael Cornelly, Abe Laeser, Sharpie)

For you young ASAs and PDs wondering, just before the picture was taken everyone put away their cell phones and laptops. 

LANCE STELZER HAS PASSED AWAY

Lance Stelzer, a well known Miami Criminal Defense Attorney who handled many cases in the REGJB as both a well respected prosecutor and criminal defense attorney has passed away. 

UPDATE: FUNERAL SERVICES
Many of you have asked about the service for Lance. The best information that I have is as follows:
The service will be at Riverside Gordon-Mt. Nebo Cemetery, 5900 SW 77 Ave., on Friday, March 25, at 11:30 a.m. The reception will follow at a location to be announced at the service. The Cemetery is located just south of Miller Drive on the west side of the Palmetto. Those that want to contribute to the reception food, can contact Roasters and Toasters, 9465 S. Dixie Hwy., 305.251.4848.

If you have any question, you can contact Lance's secretary, Pilar, at 305.457.1351 or by email at pjimenezlaw@yahoo.com. She is very loaded down and may take some time to respond.
James Woodard


Sometimes your path just doesn't cross with someone, even though they are well known and work in the same field as you. That occurred with us and Mr. Stelzer. We just never had the opportunity to work on a case with him or get to know him. 
But we have read some of the emails about him, and what stands out is that his colleagues and friends are uniformly writing that he was a hardworking, dedicated attorney who was known for meticulous preparation. We have also read that he was the loving, and dedicated father to a thirteen year old son, which makes his untimely death that much more tragic. 

We will endeavor to post some of the comments in this post. 

Below are some comments from readers who knew Lance:

Lance's passing is very sad news.  I tried one on my first homicide cases with Lance.  He was a talented prosecutor and lawyer.  One trait for which he was well known was his endless pretrial preparation.  He believed that one could never be too prepared.

He was generous with his time and always willing to assist young lawyers.  He never took himself too seriously and he had an infectious personality.

Lance was a good man and he died way too young.

Samuel J. Rabin Jr., P. A

Robert Godwin:
Robert Godwin was a long time prosecutor and then PD in Dade, and then in Broward, before retiring. We have heard he may have passed away. We are trying to get confirmation of this. Any info would be appreciated.
CONFIRMED- We do a separate post for him later this week. 


See You In Court.