RAINY DAYS AND MONDAYS

FLORIDA SUPREME COURT UPDATE: High noon has come and gone and no new Justice for the Tallahassee Eight. So Our own Captain called the Governor and his press office said this:

“Governor DeSantis will be making an announcement about Judge Renatha Francis and the future of the Florida Supreme Court today” 

Booyah! 

As the song goes, "Rainy days and Mondays always get me down." Add to that a pandemic, a large part of the American West going up in flames, and multiple active tropical systems in the North Atlantic and Caribbean Seas.  If you are looking for a cheer-me-up- click on over to Mr. Markus's blog where perhaps they are discussing Judge Lagoa's chance to be the only judge to actively serve simultaneously as a a Justice on the Florida and US Supreme Courts. 

PANDEMIC NEWS:

Israel has so mishandled the pandemic that it is now going back to a full-shutdown as orthodox religious groups who have stores that do big business in the run-up to the high-holiday season threaten to ignore the government's order. In other words- civil unrest. 

Florida races to phase two openings in counties and court systems. We will have more to say in a later post this week on why pandemics, like recalcitrant two-year-olds, ignore rules. Suffice to say that when over 3,000 Floridians a day are still getting infected is no time to open bars and indoor dinning-even at 50% capacity. 

GLOBAL WARMING IS A FRAUD

The best way to deal with science that you do not like is to ignore it. The US has shown that over the last twenty years. Remember the applause and wild ecstasy the phrase "drill baby drill" caused ten years ago? Recall the current administration's withdrawal from the Paris Climate Agreement. The agreement was nothing more than a European plan to thwart American Exceptionalism. Americans - unlike any other people on earth- were given by the God himself the right to drive large pick-up trucks and SUVs. God ordained the burning of coal, otherwise he wouldn't have put so much of it in West Virginia and Pennsylvania. Right? 

There is nothing more American than getting out of a coal mine shift, driving to 7-11 for a big gulp of diet soda before heading home to eat some fried chicken and watch football on Saturday and Sunday. This is what allowed our boys to storm the beaches of Normandy in June 1944. It wasn't some silly European concept like science or education. Such things did not allow Dr. Salk to invent the polio vaccine. It was big cars, big soda, big servings of greasy food and Football. Baseball. Hot dogs. Apple Pie and Chevrolet. 

And now we are paying the price for ignoring science as people in San Francisco awake to dystopian scenes of orange days. Fires surround Portland, Oregon. Thousands of people have lost their homes. Hundreds are dead. Has any one considered whether the farms of  California can continue to feed the country? Whether the fires have so upset the ecological balance of bees, birds, rain, sun, trees and soil that once the dust clears the farms will no longer produce food?  "Drill baby drill". 

This, dear readers, is fake news: 

So is this:

The Paris Climate accord will not stop this. Global warming did not cause this. We did not drill enough. Because Americans are exceptional, right? Science does not apply to us. Education at liberal colleges is part of the deep state that causes these problems. 

Covid-19 isn't a pandemic. It is nothing to be afraid of. It will "disappear like a miracle" because there is no reason to listen to doctors and scientists who trained their whole lives for this event. Science and technology did not allow the United States to be the only country to land a man on the moon. American exceptionalism did. The belief that we are better and different and entitled because our fathers and grandfathers and great grand fathers bravely fought at places like Belleau Wood, The Ardennes Forrest, The Chosin reservoir, and Khe Sanh. The fact that Buzz Aldrin had -in 1963 while a major in the US Air Force- earned a doctorate from MIT in Orbital Mechanics for his thesis on "line of sight guidance for manned orbital rendezvous"  had nothing to do with the success of the first moon landing. Right? 

Of course we are being sarcastic. We are paying the price and will continue to pay the price for ignoring science. But what is even worse is the 35-40% of Americans who believe what we wrote. That Harvard, and MIT and the University of Chicago and Stanford are not the backbones of a great University system whose leaders can help cool the planet and find a vaccine for Covid-19. That Americans do not succeed because we are innovative and educated. That Americans succeed because they are simply entitled to succeed because of some brave act our ancestors performed on foreign battlefields 60, 80, or a hundred years ago (do any of our readers even understand what occurred at Belleau Wood? Did anyone bother to talk to Sy Gaer about the fighting at the Chosin Reservoir? Much the shame for that.)

We should be rightfully proud of what our soldiers did in the wars we allude to. But the fallacy in the American Exceptionalism /Greatest Generation argument that those who hate scientists and doctors miss, is that the boys who picked up a rifle and held a line in a Belgium Forrest  or Korea or stormed a French Beach did so because they believed that they were preserving a country that promised a better life to their children through freedom, science and education- the very values those who support our current president despise. 

We are 50 days away from a Presidential Election that may well tear the country apart. Far from being the beacon of democracy, we may turn into a backwater dictatorship where votes are discounted and the will of the people thwarted by jack-booted thugs who march in support of their dictator while the Country burns from riots and Santa Ana winds. 

Drill baby drill. 

NFL 2020 WEEK ONE

UPDATE: 5-0 Game picks week one; 1-2 totals. 

UPDATE: Survivor pool is posted below. The  KC/Texans game had a total of 54 points. If the Fins/Cheaters put up between 43-55 points, we are going to have some winners in the totals contest which pays a one week pass in the contest. 

UPDATE: Fins lost  21-11. The total was 32 + 54= 96 is the winning number. And your winners are: Rick Freedman(95) and The Ren (A Venue)(97).  YOU MUST USE YOUR FREE PASS BEFORE YOU PLAY THAT WEEK. IT IS LIKE A SURVIVOR IMMUNITY IDOL. IF YOU DO NOT PLAY IT AND LOSE THAT WEEK YOU ARE OUT. Kindly act accordingly. 

We lost eight good players in the first week with their picks off the Fins, Colts, and Eagles. The KC and Ravens and Bills plays were the safest. 23 out of 31 remain. 

And we are off and running. The 2020 NFL season has begun. They pulled it off without preseason games (say goodbye to those for the future) and with keeping players and staff safe. The NFL gets a Well Done...Well done indeed from us. 

We cannot promise we will be providing weekly picks and insights that some many readers have used to fund their boats, vacation homes, children's education...but we will try. Time zone issues make this a bit of a problem.  We start the season 1-0 with our pick of KC over the Texans this past Thursday. (Win)

Your Miami Dolphins are playing the Cheaters in New England  and we will be listening to this game via satellite radio. The Cheaters start a new era with Cam Newton at QB. He has a chip on his shoulder and we cannot advise taking the Fins +6.5. For fun we are taking a flyer on the money line for Miami +250 (250 for every 100 bet on Miami to win without any points), but the pick here is Cam&Bill -6.5.  WIN

J...E...T...S JETS JET JETS! shuffle off the Buffalo to play the resurgent Bills who have to be a favourite to win the division this year.  Buffalo is for real. Give the 6.5 in this one. Sorry to say this, but shortly the NY Jets will be on the clock for the number one pick in the 2021 NFL draft. WIN

Browns at Ravens. Latst year when we had never heard of Covid, in week four the Browns blasted the Ravens 40-25. After that game the Ravens went on a tear and they are a different team. The Browns will always be the Browns and that means give the 8 and take Baltimore. WIN

The game of the day has QBs with a combined age of 84 years. In their NFL careers Drew Brees and Tom Brady have thrown a combined 1,088 TDs and 151,987 yards. Brady is now a Buccanner and his coach Bruce Arians is a QB whisperer. But we like the talent surrounding Brees: Alvan Kamara at RB and WRs Michael Thomas and Emmanuel Sanders. Take the hometown Saints -3.5. WIN

Here are some totals we like:

Raiders/Panthers under 48 (L); Bears/Lions under 44.5(L); Titans/Broncos over 41.5; Browns/Ravens under 48. WIN

We will have the survivor pool up Sunday around 1pm. There is still time to enter. Send a pick to Fbpool12@gmail.com. 

week one by HR on Scribd

THE REVENGE OF TEXTUALISM

UPDATE: Judge Francis has withdrawn her name from consideration to become the next Justice on the Florida Supreme Court 

We like nothing better than when a conservative court issues a conservative order that bites a conservative in their maskless butt. 

The Florida Supreme Court did that Friday when, invoking the ghost of Scalia past, it ordered our mask shaming governor to appointment a new Justice to the Court by Monday High Noon. A showdown at the OK Coral this is not. But still, it has the makings of some fun. Suppose for a second the Governor nominates a Judge who can serve for two months before mandatory retirement? Just a thought as to all the shenanigans that we may be in for.  Nothing better than a Constitutional Crisis Weekend. 

Here are some highlights from the order: 

"The constitution’s ten-year Bar membership requirement and sixty-day appointment deadline are bright-line textual mandates that impose rules rather than standards and prioritize certainty over discretion. To some, enforcing rules like these might seem needlessly formalistic when the result is to preclude the appointment of an otherwise qualified candidate. But “formalism,” as Justice Scalia observed, “is what makes a government a government of laws and not of men.”

In other words, "here is your Scalia textualism, now choke on it."

The Governor thought he was being sneaky when his counsel, in their latest argument wrote that DeSantis didn't Appoint Judge Francis to the Court...he just announced his Intention to appoint her when she was eligible. 

The Court didn't buy what the Governor was peddling, dismissing the linguistic slight of hand in a snickering footnote:  

"We note the inconsistency with the Governor’s assertion, in response to the initial petition in this case, that “Governor DeSantis completed his legal duty by appointing Judge Francis … to the Florida Supreme Court on May 26, 2020."

All over the State robed readers who want to live in Tallahassee are making their plans, and checking their phones twice, waiting for DeSantis to be naughty or nice. Someone is going to get the call "Hey, how do you feel about being my second choice?"

Meanwhile Judge Francis needs to call the realtor and see if she can get her deposit back on that apartment in Tallahassee. 

2020-985_disposition_150566_d04 by HR on Scribd

JUDGE/JUSTICE RENATHA FRANCIS, IN OR OUT .......

THE CAPTAIN REPORTS:

AND THE FLORIDA SUPREME COURT HAS SPOKEN .......

The Florida Supreme Court responded this morning to the Governor's 11:57 PM filing by smacking him down "writ of mandamus" style.

Here is the link to the Order.:
 
Bottom line, every time the Governor and his legal counsel open their mouths, unconstitutional words come out. First, the Governor violated the constitution by not appointing Justice Luck's replacement within the constitutionally required 60 days. Second, he chose Judge Francis, who was constitutionally unqualified to serve (blame the JNC for nominating her in the first place).


The Florida Supreme Court ordered the Governor to pick one of the other seven "qualified" candidates by no later than Monday, September 14, 2020.

Judge Jonathan Gerber (Fourth District Court of Appeal)

Judge Jamie Grosshans (Fifth District Court of Appeal)

Judge Norma Lindsey (Third District Court of Appeal)

Judge Timothy Osterhaus (First District Court of Appeal)

Eliot Pedrosa (executive director, InterAmerican Development Bank)

Judge Lori Rowe (First District Court of Appeal)

Judge Meredith Sasso (Fifth District Court of Appeal)

PUTTING THINGS INTO PERSPECTIVE .......

On a somber note, today is the 19^TH anniversary of 9/11.

I just got off the phone negotiating with opposing counsel over the resolution of a case. Opposing counsel has been practicing for all of four years. She was 10 years old when our country was attacked on 9/11.

Have a safe weekend my friends.

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

 
 

FOOTBALL (NOT WHAT YOU THINK)

 The Texans play the Chiefs Thursday night to open up the strangest football season ever. 17,000 morons fans will be allowed to attend the game in KC. It should be a good one.

(KC 42-Titans 27- take the over).  

But our post is not about that.  Check below for the link to the Miami Dolphins video blistering the NFL on fake concerns about race. It's powerful stuff. 

Presented for your consideration: Judge Francis is a political football. 

We have been indirectly critical of her appointment.  Judge Francis  is a nice woman and by all appearances a fine judge. She appears to be bright, committed, and hard working. But those are hardly the singular qualifications to serve on our state's highest court. 

So let us just put it in play: Judge Francis was selected because she is a woman of color from the Caribbean and her pick represents diversity.  (now you can ***gasp*** in horror).

Query: Pick your favourite Supreme Court Justice: Scalia; Burger; Douglas; Frankfurter; O'Connor or Marshall (first woman, first African American). Would you have preferred the president select someone less qualified in the name of diversity? 

Let us ask another question. You are dying from a burst appendix. Do you pick your surgeon based on diversity or skill? 

Governor No Mask has played the race card. He and his supporters have called upon the plaintiffs in the lawsuit (who are African American) to drop the suit because Judge Francis is black and that is their goal- the appointment of a black Justice. 

So Judge Francis, who wants to serve for all the rights reasons- she is committed to serving the people of Florida and (in the words of Janet Reno) to do her "level best" in discharging her duties as a Justice on our highest court- is nothing more than a political football- being kicked too and fro by politicians from both parties. 

"Rumpole grow up" some of you are saying. "Get your head out of your...(whatever)"- all court appointments are political. 

Yeah, but that doesn't mean it is right. As an advocate for litigants, we want the best judges, not the most diverse. We have seen white male judges fully understand the dilemma and discrimination (if not blatant racism)  our clients of color have faced  - be it in jury selection, or being targeted for being stopped for driving while black. We have seen judges who are minorities turn a blind eye and a deaf ear to the same argument.  Woe be the lawyer who thinks a minority judge or juror will give their client special attention just because the client is of the same minority group. 

It is a difficult position to be placed in. Lifetime appointment to the job of a lifetime- but to get it you have allow yourself to be a political football. 

We have some direct experience in this- working a long time ago, in a galaxy far far away on the nomination of Judge Bork to the Supreme Court. The politics of that  failed nomination to the Supreme Court left Bork beaten and disillusioned.  Obama's last nomination for the Supreme Court- Judge Merrick Garland,  never made it to the senate for a hearing, and by all accounts Judge Garland has taken right back up on the DC Court of Appeals doing what he does best. And of course Justice Kavanagh is this generations Justice Thomas- indelibly stained with a partisan fight over his appointment. 

The concern for Judge Francis, for those who know her, like her and admire her should be this- neither side cares what happens to her. Whether her career is advanced or ruined in this fight is of almost no concern to those on either side. 

Caveat Nominee. 

SPEAKING OF RACE

Your Miami Dolphins have recorded and released a video blistering the NFL for failed promises and fake concerns over race. To protest this, the Fins will remain in the locker room this weekend while the NFL plays Lift Every Voice and the National Anthem. 

The Video is here

From the Video:

Lift Every Voice And Sing’ is just a way to save face So if my dad was a soldier, but the cops killed my brother, do I stand for one anthem and then kneel for the other? This attempt to unify only creates more divide. So we will skip the song and dance, and as a team we will stay inside. … It’s not a black-white thing or a left-right thing. Let’s clean the whole bird and stop arguing about which wing.”

Powerful powerful stuff. A great critique and we applaud them for calling the NFL out for their band-aid approach to serious social problems. 

SURVIVOR POOL- STILL TIME TO PLAY BUT THE THURSDAY NIGHT GAME IS CLOSED 

Sign up with an email to Fbpool12@gmail.com

week one by HR on Scribd

ROBERT FENSTERSHEIB MURDERED

 Attorney Robert Fenstersheib, a noted Broward Civil attorney who focused on accidents as a plaintiffs' lawyer, was tragically murdered Wednesday evening when his son, who suffered from drug addiction and mental illness, killed his father and severely wounded Fenstersheib's long time girlfriend, before turning the gun on himself and committing suicide. 

This is a bit outside our purview, but many robed readers in the civil division will know Mr. Fenstersheib and his firm.

What a terrible terrible tragedy. 

FLORIDA'S CONSTITUTIONAL CRISIS

 Florida's Real Men Don't Wear Masks Governor held a news conference today in Miramar (Motto "we got nothing special")  in which he not only dared the Florida Supreme Court to stop him from putting Judge Francis on the Court, he Double Dared them to stop him. 

The Florida Supreme Court had given the Governor who has presided over the unnecessary deaths of more Floridians than all other of Florida's Governors combined, until Wednesday to respond to what appears to be a show cause order as to why the court should not order the Governor to wear a mask to appoint any other eligible lawyer in Florida to the Supreme Court. 

DeSantis said "no way Jose!". 

Thwack...the Ball is now in the Florida Supreme Court's court. Their bet has been called. Will they now order the Governor to appoint someone else? 

On September 24 (which hereinafter will be known as the Judge/Justice Francis' Bar Admission Anniversary) Judge Francis will officially be a member of the sisterhood of the shark for ten long years. You do not often encounter that type of experience in every day life which is why her selection to the court is soooooo special. On that date, Judge Francis can become Justice Francis but for the slight obstacle of the Florida Supreme Court who has previously ruled that when a Governor makes a judicial appointment it cannot be for a future time.  So this could be a problem of a Constitutional magnitude. 

Except that our Governor, a devoted Beatles Fan, is basically quoting John Lennon: "there are no problems...only solutions" and his solution on Wednesday was to legally say "Oh yeah? Sez who?"

Rest assured we are following this from afar. Socially distanced, yet intrigued. 

Meanwhile for you survivor pool players, see our last post for new information on how to earn your first weekly pass in the Survivor Pool game- the only award winning, earth shaking, news making, Viagra takin, survivor pool in existence.  

THE SUPREME COURT STRIKES BACK & THE SURVIVOR POOL SURVIVES!

UPDATE: THE SURVIVOR POOL IS UP AND RUNNING If you want in send an email to FBpool12@gmail.com subject "Mfga". 

First chance at a one week pass- Total points of the Thursday night game AND and The Dolphins/Cheaters game. To be clear- Add the points you think KC and Texans will score AND add the total points you think the Fins and Cheaters will score and send it to us. Closest to the actual total (above or below) wins a free week pass. For example if you think the Texans beat KC 20-10 (30 total) and the Fins beat the Cheaters 20-2 (total 22) your pick would be 52. 

Second update: A tie survives. Repeat- a tie survives. If the Bills and the Jets tie 21-21 this weekend, anyone picking either team survives. 

Everyone wants to know our take on the Florida Supreme Court- Governor No Mask/ Judge Francis contretemps that is breaking this week. 

But first....something important: 

THE SURVIVOR POOL!

Survivor-  the term takes on a new meaning in 2020. Can you pick the right team every week while wearing a mask, staying out of crowds, and not getting sick and put on a ventilator? In a sense, if you're playing, you're surviving. 

How to play: Send an email to FBpool12@Gmail.com with the subject MFGA  (which as we all know means make football great again). Then it is simple- send us your pick before the game starts (Thursday or Sunday or Monday), one team only, every week, to win. No point spreads, just win. Browns beat the Chiefs? Sure you pick it and you are in it. If your team loses, you are out. If your team wins, you survive to play another week. Once you use a team, you cannot use them any more for the year. 

NFL Starts Thursday.  Are you ready for some football??

THE FLORIDA SUPREME COURT granted a motion on the Judge/Justice Renatha Francis contretemps.  The Court allowed the current petition to be amended to seek the relief the court indicated it may have granted if only the petitioner had asked for it. 

The Court gave Governor DeSantis until Wednesday to put on a mask- to respond as to why the court should not order him to pick another person-perhaps a law student?- for the open spot on the court. As we all know, Judge Francis, supremely qualified and experienced, had one eeny weeny tinney problem- she had not been a member of the Bar for ten years, which the Florida Constitution, in its infinite wisdom, requires.  DEFUND THE BAR might well be the rallying cry for Governor No-Mask-No Virus-No Problem- (but just don't bury all the dead Floridians in my backyard). But until then, it looks like Judge Francis's spot on the court might be in jeopardy this go around. 

HOT POTATO

 As reported by ace Miami Herald Reporter @Davidovalle305 the investigation into Attorney Michael Grieco's possible culpability in the scandal involving the payoff of witnesses against NY Giants 2019 first round pick Deandre Baker and Seattle Seahawks Corner Back Quinton Dunbar has become a hot potato that no prosecutor wants to investigate. To recap, Baker and Dubar were accused of robbery. Enter attorney Michael Grieco who advertises that he has a specialty in representing athletes (which sort of begs the question what class in law school teaches that? When facing a battery charge, use identity as a defense UNLESS your client is an athlete...).  On Tuesday the NY Football Giants released Baker. 

In any event, there was a meeting at Grieco's law office in which the complaining witnesses (Rumpole tip #9- never call the witness a victim- it legitimizes their allegations, even on a subconscious level) were paid $55,000.00 to sign affidavits exonerating the athletes. (Superstar representation 202- always do a pay-off on a private plane or the high seas, where jurisdiction is shaky). 

We have NO idea whether Mr. Grieco was involved. There is an allegation he walked our of his conference room where the cash was paid to the witnesses telling them to do whatever they needed to do. But nobody knows if that is true and Mr. Grieco has NOT been charged. He has been listed as a witness. 

But here's the rub: As per David Ovalle the Broward State Attorneys Office (Motto "Charge em all, let the jury sort it out") says they do not have jurisdiction because the payoff occurred in Dade. While we rarely agree with anything coming from the Kingdom of Injustice North Of the Border, and as much as it pains us to say this, this time they may be correct. The Dade State Attorneys Office,  which is shortly expected to release its close out memo on the 1933 attempted assassination of President elect Roosevelt  by Giuseppe  Zangara* (yes you millennials, that did happen, and no, there is no You Tube or Tik Tok video about it) has declined to investigate the case because they claim the case belongs to Broward. 

Well then, you might say, isn't this what the Statewide Prosecutor's office is designed to handle? Sure- but they do not want it. 

The investigation is a ....(wait for it) ... a hot potato 🥔 that no one wants. 

*Giuseppe  Zangara fired six shots at Roosevelt after he had concluded a speech in Bayfront park. The president elect was not wounded but Chicago Mayor Anton Cermak died after being shot in the stomach. In Rumpole's rules, successful presidential assassins have three names- John Wilkes Booth, Lee Harvey Oswald, Charles Julius Guiteau (Pres. Garfield) Leon Frank Czolgosz (Pres. McKinley)  Unsuccessful assassins have two names- like Zangara and John Hinkley, Jr.  

PRESIDENT PARDONED FOR CRIMES!

 President Ford pardoned President Nixon September 8, 1974. It may have cost him the election in 1976, but historians judge his action as brave and presidential. You know what would be the worst punishment to Trump? If President Biden pardoned Trump. That would be the ultimate FU. 

In any event, you probably were expecting a Constitutional Calendar from your favourite circuit court judge on the Nixon pardon, and he did not disappoint: 

Article II sec. 2 of the Constitution vests in the president the power to grant “reprieves and pardons” (but not dispensations).  The most famous, or infamous, exercise of the presidential pardon power in modern times occurred on September 8, 1974:

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION
Richard Nixon became the thirty-seventh President of the United States on January 20, 1969 and was reelected in 1972 for a second term by the electors of forty-nine of the fifty states. His term in office continued until his resignation on August 9, 1974.

Pursuant to resolutions of the House of Representatives, its Committee on the Judiciary conducted an inquiry and investigation on the impeachment of the President extending over more than eight months. The hearings of the Committee and its deliberations, which received wide national publicity over television, radio, and in printed media, resulted in votes adverse to Richard Nixon on recommended Articles of Impeachment.

As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution.

It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.

NOW, THEREFORE, I, GERALD R. FORD, PRESIDENT OF THE UNITED STATES, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.

IN WITNESS WHEREOF, I have hereunto set my hand this eighth day of September, in the year of our Lord nineteen hundred and seventy-four, and of the Independence of the United States of America the one hundred and ninety-ninth.

President Ford was bitterly criticized for his pardon of Nixon, some critics going so far as to suggest that Nixon and Ford had made a deal pursuant to which Ford would become vice-president upon Spiro Agnew’s resignation, in exchange for which he would guarantee Nixon a pardon if and when Nixon was forced from office.  After Ford left the White House in 1977, he privately justified his pardon of Nixon by carrying in his wallet a portion of the text of Burdick v. United States, 236 U.S. 79, a 1915 U.S. Supreme Court decision that suggests that a pardon carries an imputation of guilt and that acceptance of a pardon carries a confession of guilt. 

LET'S PICK SIX

BREAKING And this is big. You should sit down for this. Now steady yourself for some really really big news. 

That new Florida Grand Theft Statute that raises the threshold for a felony to $750 bucks? Well the 5th DCA has said it is...steady now...RETROACTIVE! 45 FLW D2088. 

 And if the defendant has not been sentenced the case MUST be transferred to County Court.  The circuit court has no...zero...zip...nada...jurisdiction. You can stick out your tongue at your favourite circuit judge and tell them there is nothing they can do with the case. Enjoy. (h/t to Judge De La O who sent a memo to inter alia FACDL, who shared it with us. Apparently Judge De La O is the one person in Miami who reads the FLWs). 

Query- doesn't jurisdiction flow downward? Can't a misdemeanor be handled in circuit court? We always thought so, but we have always been in the minority. And if we are wrong does that mean possession of an undersized Snook cannot be attached to a murder indictment if the crimes are related? 

LETS PICK SIX

 Lots of email and putative comments that Jury trials are back in October and everyone needs to get their trial suits on. 

Just hold on a second before pulling out those juror seating charts. 

There are a lot of moving parts here. We have to enter phase two and that means that the virus numbers need to continue to fall. Do you have any faith that the good and responsible citizens of Miami Dade County are not going to be reckless this weekend?  Judging by the pictures sent to us  of covidiot mask-less groups of  people at parks, beaches, golf courses, bocce courts, and social gathering spots, we have no faith these numbers will fall. 

Even if we do enter phase two there are a lot of issues to resolve. Masks in court or not? Will jurors come? Who pays for the hand wash and does the building need to be cleared if someone on Six sneezes? 

This we know- there are no good options for getting around. Elevators are out. And for our money so are enclosed stairwells with a bunch of out of shape lawyers huffing and puffing out covid infected aerosols as they walk from two to four. And unless we have escalator monitors, no one wants to be crowded on those and if we do have escalator monitors then there will be lines and no one wants those. 

So we are not running out to Hart Schaffner & Marx or Barneys to buy some new trial suits just yet. 

What we do know is that Judges are working and planning for the day when they can turn to their bailiff and confidently say "bring me a panel". 

Personally we believe that should not be until there is either a vaccine or a ten minute test, or preferably both. 

To dispel the rumors that seem to be arising from meetings taking place:

1- there is no rocket docket; 2- no orders demanding judges try a certain number of cases a week have been or will ever be issued.  After all, we are not Broward. 

There are planning sessions and meetings that have been and will continue to take place. 

And that is how it should be. Failing to plan is planning to fail. 

And with that we bid you adieu and wish you a safe and socially distant holiday weekend. A few drinks? Sure! In a Bar? Surely not. 

FACDL PRIME MINISTER OF DEFENSE IMPORTANT UPDATE

 Let's see if we got our Mojo back after the prior lackluster post. 

President Trump yesterday told voters in North Carolina to vote twice- once by mail and once in person. There are several Hialeah political consultants who saw that and said "Conjo! I was right,"  Of course there is the tiny issue of the fact that trying to vote twice is a federal offense. But when your president tells you to do something....

Your FACDL Prime Minister of Defense has a must read email. As always, threatened legal action requires us to aver that this email is published with the express written consent of the National Football League. 

Now here is the thing about this sleep-inducing batch of information. When it is 8:45 am and you need to log into to a Juvie hearing, do not blame us or the FACDL if you do not have the right information.

 Two interesting tidbits- Miami Dade County Department of Corrections, (Motto "Gonna make some dough like Apple") has decided to start charging for video-phone calls with inmates.  Not that they are trying to take advantage of the Covid crisis or anything. It's just good bidness.  Kudos to the PDs who do not charge for the silly insignificant 6th amendment right to counsel stuff. If you need to speak with your client gratis, use the PD information below. 

1. PVH
1. We are litigating in front of Judges Miranda and de la O the issue of whether the Court can force a PVH over defense’s objection, especially when the client is in custody and infringes on his/her 3.850 and 6^th Amendment right to competent and effective assistance of counsel.  If your client is in custody, has an objection to a PVH, and the Court is trying to force the issue, please reach out to Dan Tibbitt to discuss.
2. Corrections
1. Corrections will begin charging attorneys for video visitation beginning 10/1.  I do not know the pricing, and we are discussing alternatives, but corrections views this as akin to speaking with clients via phone, so I am not optimistic they will forever foot the bill for our client communication. 
2. Remember:  you have a free alternative in using the PD’s Office for remote visitation, email attorneyrequest@pdmiami.com
3. You can still visit clients in the jail, but it will be non-contact (“under glass”).
4. Interestingly enough, corrections says they are creating some sort of booth outside the jail where we can video conference with a client from on property, but outside jail walls.  I have no other information as to how this will work, but I am envisioning the red phone booths you see in the UK.
5. If you need a document signed (including written plea agreements) by an inmate, you have 2 options:

                                                             i.      Mail it in and wait for it to come back with your client’s signature; OR

                                                             ii.      Go into the jail, hold visitation “under glass,” provide the doc(s) to a guard, who will then walk them to the client and return to you once client has signed.

1. This is the fastest way.

                                                            iii.      There are drop boxes at all facilities for legal mail (in some cases, it may just be that…..a cardboard box).  This mail, like anything that is delivered via USPS, is opened by a CO in the presence of the client.

6. Orders for Custody Release to Programs

                                                               i.      Please verify that your client is negative for COVID before submitting an order to have them transported to a program.  The programs are not currently taking anyone with COVID.  If a transport order was submitted, but the client not transported due to being positive for COVID, it creates additional paperwork for corrections that will result in delays in other potential viable releases.

7. House Arrest and PTS orders

                                                               i.      Reminder to include ALL conditions in your order.  Name, DOB, Jail No, Sex/Race, cell location, stay away order specifics, curfew, alternate bond, permissions for work/school/etc, reduction of monitoring fees, and anything else that will need to be included dependent upon your client’s needs.

                                                             ii.      Submit your client’s references along with the order.

3. Misdemeanor DV Operations
1. Zoom directory for Misdemeanor DV to be posted shortly on our website behind the members’-only paywall. But they are attached as well.
2. A schedule of the coverage judge for below will be posted once it is released to us.
3. Beginning Wednesday, September 9, 2020 @ 3PM an assigned DV Judge will hear non-emergency misdemeanor motions for all three DV misdemeanor divisions (M87, M88, and M89).  The calendars will take place every other Wednesday.  All participants will appear remotely via Zoom.  The covering Judge will use their standing Zoom ID (which will be posted on our website).
4. A maximum of 10 motions will be set per calendar unless the covering Judge approves to raise the cap.  The COC will first set any motions that have been pending hearing.
5. To place a motion on calendar, the filing party must contact the covering DV judge by 3PM the Friday before the calendar.  Do not contact the COC.  Please make sure you have EXHAUSTED the possibility of an agreed order or ruling on the motion.  Please include the following in your motion:

                                                               i.      If your client’s presence is required

                                                             ii.      If your client needs an interpreter

                                                            iii.      Name, Case #, JLN, dob of your client

                                                            iv.      Copy the opposing ASA or APD on your motion

                                                              v.      Set forth efforts made to reach an agreement with opposing counsel

                                                            vi.      Motion must set forth all legal grounds relied upon by party filing motion.

6. Upon receipt of a motion, the DV judge will  determine whether the issue can be ruled on without a hearing or the issue necessitates a hearing. If the judge grants the hearing, the motion will be forwarded to the COC to be placed on the following week’s calendar (space permitting). 
7. Motions requiring evidentiary hearings should be specially set with the division Judge. 
8. Emergency motions will continue to be placed on the daily DV bonds calendar.
3. Juvenile Delinquency
1. Zoom Info

                                                               i.      Meeting ID: 938 0652 9690

                                                             ii.      Password: 438430

                                                           iii.      Dial by your location

1.         +1 786 635 1003 US (Miami)
1. Below is a coverage calendar for the month of September.  It will be posted on our website.  After this month, they will return to their previously scheduled rotation, which is also attached and will be posted under COVID19 Info.

September
Monday	Tuesday	Wednesday	Thursday	Friday
31  Marrero	1 Prescott	2 Denaro	3  Marrero	4 Prescott
7          LABOR DAY  WEEKEND BOND DUTY	8 Marrero	9 Prescott	10 Marrero (covering for Denaro)	11 Marrero
14 Prescott	15 Marrero (covering for Denaro)	16 Marrero	17 Prescott	18 COURT HOLIDAY WEEKEND BOND DUTY
21 Marrero	22 Prescott	23 Denaro	24 Marrero	25 Prescott
28 COURT HOLIDAY WEEKEND BOND DUTY	29 Marrero	30 Prescott	1 Denaro	2 Marrero

COVIDIOTS

 Covidiots- a term we recently heard. It applies to people who do not believe there is a virus, and/or that masks and social distancing does not matter. You know who we are talking about. Social media is full of videos of people at Walmarts screaming about their Constitutional Right to not wear a mask. Those type of people...and Florida's Governor  are classic Covidiots.  

We are approaching Labour Day and we all need to make a choice: If you have had enough of this Covid nonsense then hit the beaches, catch a movie, hang out in a bar. And prepare to get sick and maybe die. 

Rumpole rule of life #14: avoid intubation at all costs. 

This Labour day is bittersweet. This is used to be one of our favourite holidays. We would take the week off and relax. Ahead would normally be a big trial or two in September and October. Then  the holiday season and the new year. 

Not this year. For those of you toughening it out in hometown Miami, it is day after day of heat, humidity, being home- no court, no eating out, and only a Dominos pizza to break up the monotony.  

Now, we are waiting for Godot and a vaccine. 

Our bet: Pfizer will bring a vaccine out first or be the first one of the first to submit a vaccine for approval. Pfizer has the experience in getting a vaccine approved and to market. Moderna, the other big name in this field, has never brought a vaccine to market. 

FDA approval; phase one, two and three testing. We are all becoming experts on drug development and vaccine approval. 

Query: Will you want to be one of the first to get a newly approved vaccine, or will you want to wait? Are you an anti-vaxer or are you getting a flu shot this weekend?

Anyway you decide to spend your weekend, we suggest it is not here in this type of situation:

Be smart. Stay safe. 

PROBATION AND ZOOM

Probation means always having to say you're sorry. 

Some of the greatest injustices have occurred through probation violation hearings, especially when the defendant is later acquitted of the underlying charge. 

Defense attorneys are now rightfully concerned with having Judges adjudicated probation violation hearings via Zoom. With that in mind and with permission of the  FACDL Prime Minister of Defense we publish this:

As we navigate through the COVID-19 unknown, we have come across issues of first impression that we must now litigate.  One of those very issues comes in the form of Probation Violation Hearings.  One position is the Court may force these hearings to move forward via remote videoconferencing because it is not specifically excluded in the Supreme Court AOs much like jury and non-jury trials are.  FACDL-Miami member Rich Cooper’s client is being pushed by Judge Miranda, who is contemplating holding the PVH via Zoom, over the defense’s objection. 

 

That being said, we all know that an AO doesn’t obviate the Constitution.   It is the position of FACDL-Miami that, unless the defense consents (which might make sense in some cases) this is a violation of the constitutional right to counsel, right of the defendant to be physically present, and confrontation clause.  It also violates Florida Rule of Criminal Procedure 3.180.  We have filed a pleading on one case already, and FACDL statewide has also weighed in in opposition, but this is the sort of issue where one case could open the floodgates.  If you have an issue of a judge trying to set a Zoom PVH in one of your cases, and you oppose it, please reach out to Dan Tibbitt directly, at Dan@Tibbittlaw.com.

 

I want to thank several people for their quick and diligent work on this matter.  First, to Rich Cooper for having the foresight to recognize that his client’s situation has the potential to set bad precedent for the rest of us, and working with FACDL to file the objection.  Diana Johnson (Johnson and Lufrano, PA) and Jackie Perczek (Roy Black, PA) were incredibly instrumental in researching, drafting, and articulating our position and supporting arguments.  Past Presidents H. Scott Fingerhut and Jude Faccidomo have been fantastic in leading this charge.  And we couldn’t have done it without Dan Tibbitt, who when called, immediately accepted his “voluntold” position and took off running.  I should note, this was just 1 or 2 days after he volunteered to work on another Amicus brief.  This group drafted the finest (and longest) Motion for Continuance I have seen.  Thank you to Rich, Diana, Jackie, Scott, Jude, and Dan for all your hard work.

Best,

Matt