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.
Update: We are 3-3 in our picks and the Packers are currently getting soundly thumped on Sunday night football. We are sure we will be a normal 4-4 by the end of the night.
There is one third of a season left in the NFL. It is crunch time. Which QB has the best quarterback rating (QBR) which is simply arrived at the number of throws, times yardage, minus interceptions, divided by the number of PCAs issued by the 3rd DCA?
Brett Favre? Zach Wilson? Matt Jones? Lionel Messi? Tom Cheater newly single Brady? Russell Wilson? Jim Plunkett? Why no, it's your Miami Dolphins QB Tua somethingorother tagliovoa.
The Jets are sitting Zach Wilson giving a start to the greatest qb in the history of the world-Mike White. At home, where he pulled off a miracle win last year, we are all in on White over the Justin Fields-less Bears. Jets -4.5.WIN
The DC Commies are another teams sticking with a back-up qb the rest of the way- going with Taylor Heinicke over a healed Carson Wentz- who always seems to be on the short end of a hot backup qb on his team (remember Nick Foles and the Eagles SB run in 2017? Wentz was the starter until hurt). DC plays ATL. We like DC at home -4.5, getting some newfound respect from Vegas bookies. WIN
The Pack is 4-7. Aaron Rodgers has a broken right thumb. As well as a broken spirit this season.The Eagles are a struggling 9-1 if that is possible, winning some close games that should have been close recently. Not today. Eagles at home -7 with a line that should be -9.5.
With the first pick in 2023 draft the Houston Texans select....Houston at 1-8-1 are on their way to the top pick next year. The Dolphins at 7-2 are on their way to the AFC Championship game and a LEGIT Super Bowl Contender. Whomever wins the AFC is an automatic 7 point favorite in the big game. At The Orange Bowl Today....Joe Robbie Stadium Today...Hialeah Branch Court Stadium Today...Dolphins Stadium today coming off a bye week, the Fins are 13-point favourities. Lay the points as Miami wins big and finish off those turkey leftovers for dinner tonight. BIG WIN
Tis the season to sit down next to a roaring fire, have a cup of tea while it is snowing outside, and read a good book. And we recommend giving books as the best gift.
So what does Rumpole recommend?
In the last two years we re-discovered Patti Smith- a woman who is simply a pure genius. Her remarkable life story, beginning with running away from her New Jersey home as a teenager and having fate intervene and place the soon to be artist Robert Maplethorpe in her life- and their life journey together until he died of AIDS- is recounted in her bookJust Kids. We stumbled on the book in an airport on the way to NYC which much of her life story takes place. It's a life affirming, potentially life altering book. And if you have already read that one, then her new book (which she just promoted at the Miami Book Fair) is A Book of Days- one of her photographs and short description of it for each day of the year.
This is a woman who can extensively quote from 18th and 19th century poets and has throughout her life visited the graves of those who inspire her. We have heard her say the grave of Sylvia Plath was the loneliest she has ever visited. Her vignette of her encounter with chess champion Bobby Fisher as he prepared to play Boris Spassky is remarkable, as is her visit to Fisher's grave many years later.
If you must read about law, then Democratic Justice, the biography of Felix Frankfurter is a worthy read. Prodigy, German immigrant (before there were walls), Harvard Law Professor, US Attorney for the Southern District of New York, Labor mediator, personal diplomat for President Wilson dealing with "the Jewish problem" and Palestine during WWI, friend of Justice Brandies ( Frankfurter's hand in founding of the New Republic Magazine and the New Republic's support of Brandies helped overcome the antisemitism behind the opposition to Brandeis's appointment to the court) and protégé of Justice Holmes (who is perhaps the first Justice to intelligently articulate the philosophy of the limited role of Judges in interpreting the law). It is worth the time to read.
Give "Year Of Dangerous Days" to your favourite Judge or prosecutor or PD so they can learn what Miami was like during the late 70s-80s and how the cocaine traffickers and cocaine wars changed our small southern town.
Princes at War for the WWII buff and the Royal family's involvement in battling national socialism in the 1930s and WWII.
The madness of the 45th president and all his many short comings are detailed in the audio book "The Trump Tapes" by Bob Woodward. Woodward recorded 18 separate interviews with the president. What emerges in his own twisted words, is a man of limited intelligence, fixated on certain ideas and events that he cannot get rid of. For example, over and over throughout the years that the interviews occur, Trump returns to an incident in the 1980s when Woodward and Bernstein visited him in New York to consider a book about him. The addled President frequently returns to that episode, repeatedly reminding Woodward of the opportunity he missed in not doing that book, often raising the incident in a manner in which it is clear he didn't remember raising it in a prior conversation. Along with the now familiar speech pattern of "Nobody has ever seen...", and "People are saying..." while trumpeting his greatness in lies- "the greatest economy of all time....", and "nobody can believe the relationship I formed with North Korea", what emerges from hearing Trump speak is the shock that that someone so dumb and mentally ill could reach the presidency.
Paul Newman In His Own Words is a fascinating insight into a complicated 20th century icon. Newman recorded hundreds of hours of interviews with Stewart Stern, a screenwriter and longtime friend. Then Newman burned the tapes and the project was over. THEN....transcripts of the tapes were found in Stern's records when he passed away and the book was created.
At Patti Smith's suggestion, we are starting Henning Mankell's Kurt Wallender series with the first book in the series about the Swedish detective- Faceless Killers. Join the journey with us,
ITEM: Cheasapeake is Virginia's second largest city. On this past Tuesday. at a Walmart around 10pm as shoppers looked for preholiday bargains a manager stepped out a break room and started shooting, spraying bullets everywhere. Donna Prioleau, a worker at the store, saw three of her friends killed.
ITEM: The weekend before the shooting at the Walmart, at Club-Q in Colorado Springs, a state not unfamiliar with gun violence, an establishment catering to LGBTQ patrons, a gunmen opened fire and killed five people, wounding 25 others. Richar Fierro, a former US Army combat veteran who was in the club with his family, disarmed the shooter and beat him, risking his life in the process. On right wing media Fierro is already being attacked and has received death threats. What was a man with a family doing at such a club they ask. As if a family cannot enter an LGBTQ establishment for a drink or meal or to listen to music. "False-flag" accusations are being made, despite the evisceration of right wing media nut Alex Jones and the billion-dollar judgement against him for raising the same lies about the Sandy Hook school shooting. And some religious commentators have darkly opined that the dead will meet their final judgement for the life they led (read being condemned for their sexual preferences).
There were seven mass shootings in seven days in the week before Thanksgiving. 22 people died of gun violence, 44 people were wounded by guns.
The second amendment, which has NOTHING to do with an individual's right to buy an AR-22, is causing a national epidemic of violence and death. And the Right's answer is to arm more people. It's as if in facing the AIDs epidemics, the answer was to have more unprotected sex.
This, readers of the blog, is insanity. It is not something that a civilized society endures.
However the future is grim. We as a nation could not take united action against a pandemic, with a large percentage of the population finding conspiracies behind the mask mandate and the creation and use of vaccines that battled Covid19. If we cannot unite behind that common enemy, we have no chance to unite to end gun violence.
Gun violence will continue, and mark our words, as in Parkland, it will affect people in Florida. We do not wish this. But we can read the writing on the wall.
"When the crops were thriving, Squanto took the men to the open forests where the turkey dwelled. He pointed out the nuts, seeds, and insects that the iridescent birds fed upon.
He showed them the leaf nests of the squirrels and the hideouts of the skunks and raccoons. Walking silently along bear trails, he took them to the blueberry patches. He told them that deer moved about at sundown and sunrise. He took them inland to valleys where the deer congregated in winter and were easy to harvest. He walked the Pilgrims freely over the land. To Squanto, as to all Native Americans, the land did not belong to the people, people belonged to the land"
A small band of explorers, seeking religious freedom sailed across an ocean and established a great nation. A nation founded on great ideals of freedom. A nation that often does not live up to those ideals. But a nation of people who try. In the coming days we will point out our failures, because doing so makes us stronger and better.
For today we wish you peace and happiness with your family and friends.
BUT... being Rumpole, we cannot resist this one rant.
Our email inboxes are already filled up with Black Friday deals. That mop with the automatic squeegee that we think will change our life- well now it's on sale for 50% off. That is what Thanksgiving has turned into- an enormous sale of goods for consumers. So be it. We have bought a TV from time to time over the years on Friday. Not to mention a new coffee maker (we are in fact about to buy the Spin and go Pod free. It's not a cheap purchase and we are still pondering it, so any reviews are welcome.).
HOWEVER, what we do not need is your email wishing us a happy Thanksgiving.
No one sits down to their meal, a beautiful Turkey on the table with all the fixins and says "wait a sec honey. Before we pray and eat, did we get that email from Dooey Cheetum and Howe wishing us a happy Thanksgiving?
"Who?"
"You know, the law firm who two years ago sued on our behalf when the neighbor's septic tank leaked and ruined your petunia garden. They always send an email with a picture of a smiling turkey wishing us a happy Thanksgiving..."
JUST STOP IT.
We do not need your email. It just clogs up our inbox, obscuring the email from CMECF notifying us that the motions to suppress was denied without a hearing (because if the officer found it, it was there, so there....) and trial is set for January 2.
The email is just an ad masquerading as good wishes. "Hey everyone- don't forget about us. We sue insurance companies when they don't pay for hurricane damage and we are such good people that we also wish you happy Thanksgiving."
You want to be a good person? Go donate to a food bank. Go serve meals at a homeless shelter. And do it anonymously:
"Be careful that you don't do your charitable. giving before men, to be seen by them, or else. you have no reward from your Father who is in heaven."
Matthew 6:1
Of course, Jesus had limited internet availability when he gave his Sermon on the Mount, or else he may have said "Be careful that you do not send your emails trumpeting your charitable deeds and good wishes, to be seen by others, else your team will not cover on Thanksgiving day."
Before there was January 6, the Steele dossier, Vaccine deniers, flat earthers, fake news, Whitewater, Watergate, the 18 minute gap, and the fake moon landing, there was the belief that more than one person killed President John F. Kennedy on November 22, 1963.
We admit to going down that rabbit hole ourselves.
Curious about the assassination, and the findings of the 1978 House Select Committee on Assassinations that President Kennedy was "probably" killed as a result of a conspiracy, we began our own deep dive into the assassination, culminating in our reading of the very entertaining book Crossfire, the Plot to Kill Kennedy, by author Jim Marrs. That led us to believe that there was most likely a second gunman in Dealey Plaza in November 1963.
BUT, then we went to Dealey Plaza. We stood in the window next to the one Oswald was at when he killed the President, and we were struck by a few things. First, and foremost, it is not a difficult shot. The President's limousine goes right underneath the window. The distance is much closer than we were led to believe. There are markings of where the president's car was when the shots were fired. Based on the speed, it was easy for us to determine that Oswald's cheap Italian rifle (Mannlicher Carcano) could have fired the shots within the time frame necessary to kill the president. A more detailed and complete understanding of the physics and ballistics of the so called "magic bullet" (Warren Commission Exhibit 399) led us to conclude one bullet did in fact cause the wounds on Kennedy's neck, and Governor Connally's chest, rib, wrist and thigh.
Kennedy assassination buffs will recall that Kennedy was first shot between Zapruder frames 210 and 225 and Governor Connally was wounded no later than frame 240. And yet, army gun experts could not cycle Oswald's rifle to fire two shots quicker than in 2.25 seconds or 40 frames of the Zapruder film. Therefore, only one bullet had to cause all these injuries.
Both a 2003 computer generated animation of the shooting (begun by a researcher in 1993) and shown in an ABC documentary, and a 2004 reenactment on the Discovery Channel using computer generated data and animations, showed that the wounds on both men lined up exactly AND tracing the path of the projectile backwards, it could have originated only from a cone that covered the window Oswald was in.
Kennedy was killed solely by Oswald. Case Closed, written by Miami Author Gerald Posner makes the very compelling case that Oswald acted alone.
The final piece of reading on the subject, not for research purposes, but with some research and a very very entertaining book is Stephen King's 11/22/1963. It is in our opinion one of the very best books King has ever written.
It's hard to imagine that a country could be so altered by the acts of one man. That a great man could be killed by an insignificant slug of a man. That history could be altered by the acts of one lone gunman. This is why conspiracy theories form.
There was a lot of weird stuff going on in Dealey Plaza before the shooting (like Umbrella Man). And yet, if you took a camera and recorded any public event for 30 minutes, you would see weird events and unexpected people showing up.
There's still a lot of intrigue around Oswald. The supposed double in Mexico, his defection to Russia and then return, a CIA file opened on him years before the shooting. But we remain confident that Oswald, and Oswald alone, killed the 35th President of the United States.
So what say you? Look at the Zapruder film and tell us: conspiracy or not?
The murder case, that had been lingering for three plus years was ready to go. The prosecution team was present. The judge was present. The defendant was present. The defense attorney was nowhere to be found.
When the defense attorney contacted the court via zoom. the judge lit into him. It was disgraceful he had failed to appear. The Judge was inconvenienced. She mentioned to the defendant that they may be better off with a new lawyer.
The judge threatened to hold the missing lawyer in contempt.
Rightfully so we think.
The defense attorney's excuse?
They were in the hospital after having a STROKE.
The only surprising thing about this story is that it wasn't a Broward Judge.
CLAYTON COUNTY, Ga. — An attorney who had a stroke and couldn’t make it to court is speaking only to Channel 2 Action News about the tongue-lashing he got from the judge.
Matt Tucker is representing Hannah Payne, who is accused of shooting and killing 62-year-old Kenneth Herring while she was trying to make a citizens arrest after Herring was involved in a hit-and-run accident in 2019.
Jury selection in Payne’s murder trial was supposed to start Monday, but Tucker couldn’t make it to court due to the medical emergency. There is no word when the trial might go forward.
Channel 2′s Tom Jones spoke to Tucker, who is still recovering in the hospital. Tucker is upset because he says Judge Shana Rooks Malone lit into him on national television, saying she was going to hold him in contempt of court because of his “behavior.”
Payne told Malone that Tucker had suffered a stroke Saturday and that he was in the hospital. The judge said that Tucker never contacted her office.
Tucker said his office emailed the court to let the staff know he had a medical emergency. He just doesn’t understand why the judge refused to accept what Payne told her.
“I’ve never lied to the court,” Tucker said. “I’m an officer of the court. It is not a disservice. We’ve been waiting on this trail for three years.”
Tucker said he and Payne are now concerned that she may not get a fair trial. Tucker said he may file a motion to remove Malone from the case.
Good Sunday morning! The 2022 World Cup begins and that means the Union Jack will be waived by Rumpole as we cheer on England. Team USA is back after an eight-year absence, but if you have traveled to Qatar, you cannot enjoy a crisp, cold American Budweiser or a Guiness while watching the game. No alcohol sales at the games.
Here are our thoughts on the groupings with money odds ( for example -200 means you need to bet 200 to win 100. +200 means you lay 100 to win 200). The odds are to win the group. Our picks to win the group are in bold.
For the finals, nothing would please us more than a repeat of that glorious 1964 final when England beat Germany.
Group A Netherlands is the clear favourite. -280. Senegal +450 Ecuador +500 Qatar +1000
Browns at Bills in Detroit. Bills had to move their home game when 6 feet of snow was dumped on Buffalo. Bills -7.5. An angry Josh Allen is not a QB you want to face.
Group B England -280 is our choice. A solid USA team is second at +500. Wales +500. Iran +600 The USA plays Wales in its first game and a win is crucial for the team to advance.
Jets at Cheaters. At 6-3 the Jets are a force to be reckoned with. Jets -3 over the cheaters.
Group C Argentina -205. Poland +400. Mexico +450. Saudi Arabia +2000
Lions at Giants.Lions are becoming a good team. The Gints are decent enough to win at home -3.
Group D France -225. Denmark +225. Tunisia +1600. Australia +2500.
Raiders at Broncos. Who cares? They both stink. But take the Raiders at +2.5 if you have too.
Group E This is the best group of the bunch. The Spain/Germany matchup will be epic. Spain -115. Germany +115. Japan. +1000. Costa Rica +5000.
Cowpokes at Vikings. The Vikings appear to be a team of destiny. They won an amazing game over the Bills in an ending we have never seen with Josh Allen fumbling the snap at the 1 yard line up by seven and with the game over. It's hard to bet against teams of destiny. Take the Vikes getting 1 at home.
Group F. Belgium -190. Croatia +200. Morocco +850. Canada +1000.
KC -6 at Chargers. Chargers are decimated by injuries. Herbert is second in pass attempts behind Count Brady-Dracula in Tampa, but only 14th in completions. He is throwing but no one is catching.
Group G. Brazil -300. Switzerland +550. Serbia +650. Cameroon +1200. There is nothing better than rooting for scrappy Cameroon and we will be doing so.
Panthers at Ravens. Is Carolina so bad that Baltimore is a 13 point favourite? Yes they are Ravens -13.
Group H. Portugal -145. Uruguay +185. Ghana +1000. South Korea +1100,
Commiesat Texans. Washington pulled out the big upset and knocked off the Eagles. Houston isn't a bad football team despite their record. Houston +3.5.
The great beast awakens hungry. Slowly it emerges from slumber, never sleeping, always hungry. It opens its maw wide, demanding to be fed. Always hungry, eating souls, swallowing lives whole, the waste products of broken human beings emerging from its spirit crushing peristalsis. Some never leave. Death overtakes their imprisonment. Those that stumble out, vacant eyes, brains rewired with the disease of institutionalism, are zombies. Torturers and tortured, dead inside.
Elizabeth Holmes was fed to the beast on Friday. 11 1/2 years. 4,200 days.
Consider this- President Obama was 10 months into his first term of President 4,200 days ago.
If Elizabeth Holmes was sentenced in November 2009, would we today be saying "yeah, that's about the right amount of time'? Would her release in 2014 or 2016 or 2018 have been an abject failure of the justice system?
Now she faces life in the Gulag until 2033. One third of the 21th century gone. Eat when told. Read what is allowed. Think only what is approved. All on a ceaseless schedule that never changes on any day at any time for any reason. A life of endless monotony, punctured only by the daily bouts of survival. Attacks by guards or inmates or both, a constant and never ceasing source of anxiety.
Was there a belief that if she was released in 2028 that the public would be in danger? Given her notoriety, is there any real concern that she will get out, form a new company, solicit investors with fake information? Again?
Are there people in Silcon Valley as we speak deciding not to issue fake press releases because of her sentence yesterday?
This is just the beast that we have created demanding to be fed.
Nameless and faceless bureaucrats, skulking the hallways of corridors of fleeting power in Washington DC pieced together a labyrinth of rules, assigned them numbers, and reduced justice to calculators.
Sophisticated Means? (which means using a cell phone or laptop in the commission of a crime) increase the sentence. Failure to roll over and beg for mercy? Increase the sentence. Testify in your defense (a right enshrined in our precious Constitution) and lose- increase your sentence. Of course you have rights no other person in any other country on earth has- exercise them? Increase your sentence.
Be a lap dog. Jump when told, say what you're told to say- decrease your sentence. Don't investigate, don't file motions, don't cite the presumption of innocence- decrease your sentence. Yes, the beast must be fed, but it eats less when you bow your head as your collar is being fastened.
What happened yesterday and what happens every day to countless people in the "greatest justice system on earth" is a crime against humanity.
The only real difference between our trials and the show trials of Iran and North Korea and Russia (ask Brittnay Griner) is that we think out shit doesn't stink. It does. It stinks just as much as any other of those countries who do what they do without hiding behind the hypocrisy of "rights".
Best justice system on earth? You can have it. The Emperor has no clothes and we are not afraid to say so.
A day in jail is awful. A year is life changing. Five years is life altering.
Considering that the government is seeking restitution in the amount of over 800 million dollars (or roughly the salary for the Yankees starting four rotation next year) Elizabeth Holmes's life is inexorably altered for the worse. She is not keeping any of the profits of Theranos- because there were no profits. Only losses.
So explain to us how, in 2027, after having served five years in prison, if she was released 1) people would be in danger and/or 2) CEOs would see on their Apple news feed a piece on her release and call in their top people and say "Liz Holmes just got released. So that billion dollar fraud we were thinking about doing? It's a go. We can all do five if we have to, right?"
We cannot see a purpose for incarcerating Elizabeth Holmes for more than two years. The Court's restitution order will remain in effect for at least 20 years.
There is no such thing as deterrence in criminal law. We have yet, in approaching forty years in the field, to meet one blessed person who has said to us something like "I was thinking of doing a pump and dump stock scheme, but then I read that decision out of the Fifth Circuit affirming the 134 month sentence, and I just decided I couldn't do the 11 plus years."
It is not as if Holmes will get out of prison, rub her hands together, twirl her moustache, and ask her cohorts if they know about any widows whose investment accounts they can plunder.
There needs to be sanity brought back into federal white collar fraud sentencing. There is however, very little hope on the horizon. People who are emotionally involved in these matters scream at the press "she got away with it" if her sentence is not death.
And that's the problem. Congress responds to those apocryphal stories more than it does sentencing and recidivism data.
So we think the over/under is 120 months and we are betting over. Because when the US government can squash you like a bug on a windshield and send you to our gulags, they do so, trumpeting due process all along the way.
In the staid hallways of the Thurgood Marshall courthouse in the SDNY, lawyers in thousand-dollar overcoats who have reservations at Nobu for seven pm after the trial, pass each other and nod collegially as they head to court to battle over SEC violations and interpretations of rule 10b-5 issues.
Until this week, when Mr. Markus and Ms. Moss (Batman and Batgirl? The Green Hornet and Cato? Let us know your thoughts) brought a little of the 305 into the 212. Apparently their client bumped into the lawyers of his former partner who is now cooperating. He may have told them in no uncertain terms to perform a profoundly private act with themselves, singularly, and without the belief that it would be satisfying.
The US Attorneys raced to the Judge. "Much ado about nothing" Mr, Markus huffed, and the trial continued.
The encounter is familiar to those of us who have spent a lot of time either on the other side of the East River, or in the REGJB, or both.
Our favorite suggestion came from a harried PD who we once overheard suggesting to a cop that he engage in an aerial attempt at copulation with a rolling donut.
The Law360 article detailing the contretemps is here. The trial continues, feathers ruffled.
On November 9-10 in 1938, state sanctioned gangs of nazi thugs broke the store windows of Jewish businesses in Germany and looted them (thus the phrase "the night of broken glass"). 30,000 Jews were rounded up and sent to concentration camps. Good German citizens looked the other way.
In the 1950s and 1960s Jews marched with African Americans. Both groups had been marginalized by Americans. In Miami Beach it was common to see signs that read "No Blacks or Jews". Want to buy a home in certain parts of Miami? A house built in the 1940s in Bal Harbour will often have the restrictive covenant that the property could not be sold to a person with one quarter black blood or one eighth Jewish blood. It was more insidious to be Jewish than Black.
Currently, while white hate groups gather force at the ever shrinking margins of American society, some African- Americans buy into the hate speech ideas that Jews have all the money and that Jews control Hollywood. African American athletes repeat such speech, spreading the type of hate their parents and grandparents suffered from.
Speaking personally for a moment- something I rarely do on this blog- I never thought it could happen here in America. But now I am not so sure. We have the makings of another Krystalnacht right here. And that worries me.
Speaking of racism, our own Judge Hirsch has a Constitutional Calendar that covers some of what we speak of:
On the evening of November 10, 1919, Supreme Court Justices McKenna, Pitney, and Van Devanter paid an unexpected call at the home of their colleague Oliver Wendell Holmes. The three justices had a good idea of what Holmes was planning to write in his impending dissent in Abrams v. United States, and they opposed it so strongly that they broke protocol and simply showed up on Holmes's doorstep. (Mrs. Holmes may have been in on the plan. Uncharacteristically, she joined the discussion, and joined the opposition to her husband's anticipated dissent.)
The Abrams defendants were foreign-born Jews, pamphleteers who had urged American workers not to support American opposition to the Bolshevik revolution. They had been convicted under the Espionage Act as it then existed, and sentenced to up to 20 years in prison. Justice Holmes's three colleagues were concerned that an energetic defense of free speech from his pen would do far-reaching damage to the nation's safety. (They also suspected that Holmes, who was philo-Semitic, was being influenced by Justice Brandeis and Professors Laski and Frankfurter.)
Although the conversation remained cordial, Justice Holmes's reply to his colleagues came in his separate opinion in Abrams v. United States, 250 U.S. 616, 619 et. seq. (1919). The opinion includes these excerpts:
”I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times.
“But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.”
. . .
“In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow — a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here, but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court.
“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
As Miamians dug out from under several dozen misplaced leafs and some twigs blown about, our intrepid court leaders have announced that Courts will be open on Thursday.
We should all do our best to struggle through the hardships (our Starbucks ran out of coconut milk, which is a big deal for us) of being battered by yet another storm and go about the business of rebuilding our lives.
We know that Miami Dade Courts link their closing to the closing of the Jai Alai frontons as well as Miami Dade Public Schools. (Practice tip- Judges cannot read a weather map for the life of them).
This was the tweet from Miami Dade Schools Tuesday evening.
And this was on the Miami Dade Court's Twitter: (We kid you not)
Of course we shouldn't expect much since the 11th Judicial Circuit's website states
"As Chief Judge I am pleased to welcome all visitors to this new technology.
UPDATE: It's Tuesday evening and you don't know whether courts are open or not tomorrow. Well, unfortunately the Little Sharks and Mermaids Happy Casa Daycare hasn't announced anything yet. But here are some tips-
Broward will never announce what they are doing. Making attorneys and clients drive through a storm is all part of the service the judges in Broweird provide.
West Palm: Don't go. Just because.
Federal Court: if you are an employee and stay home big sister will be monitoring you. You had better work. Bring your DENIED stamp home with you.
Miami Dade: It's complicated. The simplest way to determine ahead of time is to find your favourite judge's Zoom address, add up all the numbers and multiple them by 1351. If the number is a prime number, that court is CANCELLED. If the number is not a prime number then whether or not court is cancelled will be decided by the outcome of the election for Clerk of the Court in Cumberland County, Tennessee. If the incumbent "Bubba" wins, court is closed. If the challenger "Jethro" wins, court is open.
Hurricane Nicole? Could be. The storm will be impacting South Florida on Tuesday and make landfall on Wednesday. And pursuant to our reading of the executive orders of the Federal and State Courts, all decisions on whether or not to close court hinges on the decision of the "Little Sharksand MermaidsHappyCasa Day Care" in Hialeah. If they close, then the courts will close.
Now here's the thing. The water in the Caribbean is unseasonably warm. And the republican scientists cannot figure out why. Knowing that global warming is a Democratic/Chinese hoax, no one can understand why the water is so warm. Perhaps the whole storm is a clever Democratic trick to stop Republican voters form going to the polls on Tuesday. Could be. As Senator Hirschel Walker has said, and this is an exact quote:
"Since we don't control the air, our good air decided to float over to China's bad air, so when China gets our good air, their bad air got to move," Walker said. "So it moves over to our good air space. Then, now, we got we to clean that back up."
Now, as we are sure soon to be Georgia Senator Hirschel Walker can tell you, Nebraska Senator William Jennings Bryant gave one of the most famous speeches in American history at the Democratic National Convention in 1896- labeled the Cross of Gold Speech. Without Senator Lyndon Johson, a southerner, the 1957 Civil Rights Act would never have been enacted. Senator John Kennedy wrote Profiles In Courage in 1955. Senator Kennedy won a Pulitzer Prize for his work.
But all of those accomplishments pale before the insightful and intelligent analysis of a person, who modestly brags that he is not smart, paid for at least two abortions, while running against the right of a woman to chose, and whose articulation of weather patterns and pollution, is just too brilliant for deeper commentary.
Yes, we live in an age where millions of people are going to vote for that simpleton.
We get what we deserve. Including hurricanes in November.
What a bittersweet Sunday, filled with happiness and the sadness of endings, and the remembrances of an old friend.
First, Happy Birthday Sy Gaer! There is now a generation of REGJB lawyers and judges who never saw the hand thrust in the air, the arguments on behalf of "this poor child" (for a client often older than him when he started that refrain); the courage and defiance while under the barrage of prosecutors and police who were bullying him and would only "negotiate voltage" when the court asked about a plea offer. He was always the underdog- at his own doing- and he often won cases no one else could. We miss his signature greeting - your first name followed by "darling" (regardless of whether he was addressing a male colleague), and his omnipresence in the REGJB. He was in trial perhaps 45 to 50 weeks a year. We never heard him say he couldn't try a case because he was scheduled to be on vacation. The case set for trial, he would pull out his little black book, make a notation, and trudge on to the next courtroom to defend yet another "poor child" who, having been arrested multiple times was, in his opinion, proof of "police harassment". He was a character that will never be seen again in the hallowed halls of our simple courthouse. And we miss him.
ASTROS WIN WORLD SERIES: The baseball season ended Saturday night. No more balls and strikes and endless debating of whether to pull a pitcher or not (The Astros used four pitchers to throw the second no hitter in world series history earlier in the week). Now the countdown begins to when pitchers and catchers report. Spring arrives heralded by the crack of a bat in the grapefruit leagues. Every team is in first and hope for a magical run- like the Phillies just did- springs anew. It will not be soon enough for \us to hear "play ball!"
On to football, where Hanzy & Coco snatched the crown last week as the winner of the REGJB Survivor Pool from an enraged Fake Alex Michaels. They had an easy pick- Eagles over Steelers, while the favoured Bengals dropped the ball and were soundly defeated on MNF by the up and down Browns.
On to the picks.
Dangerous game for our Dolphins as they head to Chi town to play a resurgent Bears. Each team fortified by a solid pickup as the trade deadline expired last week. The Bears have a new beast of a receiver in Chase Claypool, while the Dolphins D is fortified by a solid B+/A- linebacker aptly named Chubb. Da Bears are getting 5. The Fins have shown that they can win the games they need to this year (as long as Tua is their QB). The Bears are good, and we are loathe to not grab a home bear-dog, but we are riding these Fins to the AFC championship game. Miami -5- not a lot of Maduros on this one- just enough to have some fun today.
Speaking of home dogs. How can we pass up the Jets getting 13 at home against the Bills? Buffalo will probably win, but not by 13. Take the Jets to rebound after an awful loss last week.
The Titans are getting 12.5 on the road at KC for the Sunday night game. KC is 20-3 in the coach Andy Andy Reid era coming off a bye week. Tennessee has revved up the Derrick Henry train during their 5-game win streak. Henry is averaging 130 yards per contest. Tennessee is also starting rookie QB Malik Willis tonight. Oh this is close, but what the heck- take the points and end the day rooting for a high scoring game. Be careful with the spread, but we love the over 46.5.
Tuesday this week brings a full moon and high tides. Wednesday brings a tropical storm to South Florida. Thursday brings snorkeling trips to Ocean Drive and Collins Avenue. "Dive The Clevelander!"
The storms we worry more about are what occurred in Broward in the Parkland shooting case. The defense team was personally attacked, and a hack-judge who presided over a case she was woefully unprepared for in intellectual ability and experience, allowed it to occur.
Ed Cowart, perhaps the smartest and most able trial judge ever to wear a robe in the REGJB presided over the Ted Bundy trial. Now we have some inexperienced robe wearer who is representative of a gaggle of lower mediocrity that now populates a majority of the desks that sit several feet above the rest of the participants in a courtroom, presiding over the largest school shooting in American history. Did Broward put forth its best and brightest? Surely even that bench, populated by Miami hating judges, had someone, anyone, with more experience in death penalty cases.
But here is the storm that is brewing. The defense won. And that is a no-no with serious ramifications. How do we know this? John Hinckley shot President Reagan on television and was acquitted using the insanity defense. So Congress gutted the insanity defense and because Hinkley shot Reagan, thousands of mentally ill people were incarcerated over the next forty years.
Every week in Florida some two-bit thug who shoots a store clerk in a robbery or kills a neighbor in a fit of jealously gets sentenced to death. No headlines. No reports. A good percentage of them- probably ten percent- maybe as a high as twenty percent - are innocent. But off to death row they go.
But the public thinks Florida juries are made up of lily livered pinko-commie killer-loving jurors, and that means there is a big storm on the horizon for death penalty defense in the state home to the next republican nominee for president. No one wins elections by advocating equality and sanity in the sentencing of criminals. Plenty of people win elections by promising to take sentencing away from liberal judges, abolish parole and early release, and seek the death penalty on crimes ranging from illegally watering your lawn to possession of an undersized snook.
After the Hinckley verdict, the insanity defense was changed by Congress and most States, after 85% of the American public opined that justice was not done in the Hinckley trial. The changes to the insanity defense included shifting the burden to the defendant, and raising the standard of proof so that now insanity meant suffering from a severe mental disease such that the defendant could not appreciate the nature and quality of the wrongfulness of his or her acts. In other words, if a defendant heard voices telling her to kill, so long as she knew the killing was wrong, she was not insane no matter what the voices told her to do. Insanity was no longer just about the inability to form intent, it now meant that it had to be a total lack of understanding the nature and result of the actus reus.
QUERY: Is it proper for a Judge, once the trial is officially over, and court has been adjourned, to leave the bench and proceed to hug members of the prosecution team of lawyers?
Following the two days of Victim Impact Statements in the Nikolas Cruz trial on Tuesday and Wednesday, Judge Scherer proceeded to sentence Cruz to 34 counts of life in prison without the possibility of parole, all 34 counts to run consecutive to each other. It has now been widely reported that, after Scherer adjourned court, she left the bench and proceeded to hug each and every one of the Assistant State Attorneys on the State’s team of prosecutors.
Below, Law & Crime, has video of “The HUG/S”.
After observing Judge Scherer’s conduct over the past two days and the way she treated elected Public Defender Gordon Weekes and the rest of the Cruz defense team, FACDL President Ernest Chang penned a letter to 17th Judicial Circuit Chief Judge Jack Tuter. That letter is printed below, in its entirety.
"The image of a judge relegating an elected public defender and his top assistant to sit in the corner like misbehaving children is offensive ....."
Hon. Jack Tuter Chief Judge, Seventeenth Judicial Circuit Broward County Courthouse 201 SE 6th Street Fort Lauderdale, Florida 33301 div07@17th.flcourts.org
RE: Judge Elizabeth Scherer
Dear Chief Judge Tuter,
The Florida Association of Criminal Defense Lawyers is troubled and feels obligated, as representatives of the Criminal Defense Bar, to express dismay at the behavior of the Hon. Elizabeth Scherer. This letter addresses events which took place during sentencing proceedings for Nikolas Cruz on Tuesday, November 1st,2022. Judge Scherer’s hostile and demeaning treatment of defense counsel, one of whom is the elected Public Defender, exposed seemingly deep disdain for the role defense lawyers play in the criminal justice system. We also take the position that Judge Sherer’s hostility reveals a temperament ill-suited to the criminal bench. Judge Scherer’s comments and actions were not only offensive but were also ultimately detrimental to the integrity of the judiciary and the judicial system.
We urge you to address this with Judge Scherer and take all appropriate steps to ensure she is not in a position to prejudice any other criminal cases.
Surely you have seen the exchanges between Judge Scherer and elected Public Defender Gordon Weekes and his assistants. When Mr. Weekes rose to address comments by victims’ families made earlier in the day, Judge Scherer dismissed him. In fact, when he asked to be heard further, the court admitted she was“summarily dismissing” him. Judge Sherer’s comments were directed to an elected constitutional officer whose demeanor was respectful and calm. Mr. Weekes deserved better.
Judge Scherer told both Mr. Weekes and chief assistant public defender David Wheeler to “go sit down”. She said this in the course of misrepresenting the arguments each had made. The image of a judge relegating an elected public defender and his top assistant to sit in the corner like misbehaving children is offensive and discounts their very vital and difficult role in this system.
The irony of Judge Sherer’s approach is that she became rude and animated in response to a straw man which she herself had established. The attorneys objected to what they perceived as threats to them and their families. They politely and plainly asked the court to prevent further“victim impact testimony” which included thinly veiled threats towards counsel. These thinly veiled threats were coming from the lectern in Judge Sherer’s courtroom. She was physically present and acknowledged the inappropriate comments. Judge Sherer suggested the thinly veiled threats simply be ignored. When Mr. Wheeler suggested that Judge Scherer would view the comments differently were they about her and her family, she turned that on its head and said the lawyer was threatening her children. Mr. Wheeler never did any such thing.
All this occurred, not incidentally, after Mr. Weekes had asked to address the issue at sidebar rather than in full public view. The court refused that invitation before inflaming the rhetoric rather than maintaining Mr. Weekes civil and measured tone.
Canon 1 of the Florida Code of Judicial Conduct declares that “An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved.”
Judge Scherer did not uphold the edict of Canon 1, and her behavior undermines public confidence in the integrity and independence of all judges.
The Parkland sentencing was a dramatic and painful, yet critical, exhibition of our criminal justice system. Defense attorneys vigorously represented their client knowing how reprehensible his actions were and how appalling most people found him. To stand by those who all else would readily condemn is the test of not just a great defense lawyer, but also of the Constitution itself.
Defense counsel provided a critical function of our system, necessary to maintain its integrity. The Court had an obligation to treat all litigants and counsel with the dignity their roles and humanity deserved. Judge Sherer failed in that obligation. Such failures by judges undermine, in the public eye, the entire criminal justice system.
Sincerely,
Ernest L. Chang Florida Association of Criminal Defense Lawyers, President
NORTH OF THE BORDER ... JUDGE ELIZABETH SCHERER LOSES IT, AGAIN .....
Our loyal readers will recall that, on September 15 of this year, we posted a story about a heated exchange between Judge Elizabeth Scherer and lead defense counsel for Nikolas Cruz, APD Melisa McNeill.
APD Melisa McNeill: "Judge, you're insulting me on the record in front of my client ..."
Judge Scherer: "You've been insulting me the entire trial ..."
Our post was titled: NORTH OF THE BORDER ... JUDGE ELIZABETH SCHERER LOSES IT, DRESSES DOWN DEFENSE COUNSEL which can be found here
Fast Forward to Sentencing today: Judge Scherer scheduled a two day hearing, today and tomorrow, for Victim Impact Statements, in the Cruz trial. Tomorrow, presumably, Judge Scherer will sentence Cruz to Life in prison. Over the course of several hours today, multiple victims addressed the court and the defendant, and at times, more than one victim directed their statements (and their anger) directly at the group of defense attorneys that represent Cruz. Those angry statements by the victims included bringing up the children of the defense attorneys. Apparently, that is when things got really ugly.
First, elected Public Defender Gordon Weekes addressed Judge Scherer. Judge Scherer responded and at one point raised her voice and directed her anger at APD Melissa McNeill, saying “Ms. McNeill - BE QUIET”. Next up was one of the Assistant PDs at the defense table who got into it with Judge Scherer about his concerns that the victims were directing their comments at the defense attorneys and including the children of the defense attorneys. Scherer dismissed his concerns. The APD shot back and asked Scherer, “Judge I can assure you that, if they were talking about your children, you would notice it.” With that, the Judge completely lost it. She ordered the APD from the defense table and told him “you’re out of line” ... “you need to go sit in the back ...” of the courtroom. The Judge went on ... “to try to threaten my children and bring up my children is inappropriate. GO TO THE BACK OF THE ROOM, NOW”.
At this point, PD Weekes re-approached the podium while Judge Scherer continued to excoriate Weekes and his office. You can watch it all unfold courtesy of NBC 6. Also, below is the story as written by WPLG, Channel 10.
FORT LAUDERDALE, Fla. – An argument over whether or not the relatives of the victims should address the Parkland school shooter’s defense attorneys during the sentencing hearing prompted Broward Circuit Judge Elizabeth Scherer to ask Broward Public Defender Gordon Weekes to sit down Tuesday in Fort Lauderdale.
A few of the parents of the victims of the 2018 Valentine’s Day massacre at Marjory Stoneman Douglas High School in Parkland used their time in court to criticize Melisa McNeill, the chief assistant public defender, and her team.
Weekes tried to persuade Scherer to prevent the incitement of violence. Assistant State Attorney Jeff Marcus stood up and objected to Weekes’ statement saying the only violence in reference was that of the defendant.
“No one jumped when people were referring to Karma acting in the universe,” Weekes said referring to a grieving mother’s comment. “No one was jumping up when they were referring to the defense’s children. No one jumped up to try to tap down that rhetoric ... I am witnessing a building of momentum and I am encouraging the court to direct the state to tap down on that momentum.”
Assistant State Attorney Carolyn McCann accused Weekes of lying.
“The only thing the state has said to any of these witnesses when they get up is, ‘Would they like to say something on behalf of the victim they are representing.’ There has been no encouraging or inciting,” McCann said.
One of the grieving father’s raised a comparison mentioning the defense’s children. Then an upset defense attorney raised the judge’s children and the judge was not having it. The exchange soon resulted in Scherer ordering the public defender to sit in the back of the courtroom with Weekes.
Weekes returned to the podium.
“Judge, the same venom that the court is expressing is the same venom that defense counsel had to see through,” Weekes said while defending his public defender’s behavior.
Scherer told Weekes that McNeill had chosen to bring up her children during her defense and then she asked Weekes to sit down. Weekes asked Scherer to not dismiss him. Scherer repeatedly asked him to sit down. Weekes eventually walked away.
“You are inappropriate and out of line. Go sit down,” Scherer told Weekes, later adding, “We are moving on with the sentencing.”
During her heated exchange with the defense, Scherer also mentioned Assistant Public Defender Tamara Curtis’ behavior in court earlier this year. Curtis wasn’t in the courtroom.
“When these people are upset about specific things that have gone on from that table like shooting the middle finger up at this court and laughing and joking ... When these people have sat in this courtroom and watched this behavior from that table and they want to say that they are not happy about it, what is the problem?”
