GONE FISHIN....

The 86 Canes have been voted the most hated sports team of all time according to Sports Illustrated.

On behalf of all Canes fans, let us say.....FU.

Speaking of most hated, The Assassin- a/k/a Oakland Raiders defensive back Jack Tatum died this week at age 61. Tatum was and always will be most remembered for his hit on Patriot WR Darryl Stingley in preseason that paralyzed Stingley for life. The hit was legal and Tatum was never fined nor disciplined by the league. Tatum never apologized for the hit, but to his credit he did attempt to meet with Stngley when he was hospitalized.

Football historians will also remember that Tatum was the Raider who collided with Steeler Frenchy Fuqua on the last play of the 1972 playoff game between the Steelers and the Raiders. The Steelers were down 7-6 when Steeler QB Terry Bradshaw threw a desperation pass to Fuqua on 4th down with less than a minute left to play. Tatum hit Fuqua as the ball arrived and it caromed off either Tatum or Fuqua and Steeler Franco Harris scooped the ball just before it hit the turf and scampered 42 yards into the end zone giving the Steelers their first playoff win ever as time ran out. Under the rules of the NFL at that time, the ball would have to have hit Tatum as an opposing player before it would have been legal for Harris to catch it. If the ball hit Fuqua and not Tatum-or if the ball hit Fuqua after it hit Tatum- the catch would not have been legal. Take a look and you tell us. 38 years later it's still the most amazing finish to a football game we've ever seen.

MELTDOWN

The Blog has melted due to excessive  heat.....

technicians are working on it. 
We apologize for any inconvenience. Please standby. 

WE'RE BUSY

This is a heartwarming story: A young girl who is in the 3rd grade achieved a perfect score on her FCAT math and reading tests and was rewarded with a trip to Disney World.  Here's the kicker- this young girl is a foster child who was removed from her parents home because of their involvement in drugs and gangs.  The Herald article is here.  Doesn't that just make you feel great about the potential of kids?  Children are our most precious resource and we damn well better start doing a better job of protecting and nurturing them. 


UPDATE How in the world did we ever forget this race?
Samantha Ruiz Cohen vs. Peter Adrien.  Do we even need to say whom we're voting for? 


Who in the world wants to work on these hot summer days?
Well, we found a Judge and prosecutor who have nothing better to do. 


So, while we're a bit busy talk amongst yourselves.




We received this comment:
rump how bout some election coverage? Kuntz v Gordo




Therefore, how about some chatter on 


Kuntz v. Gordo;
Alvarez v. Newman;
Paulson-Gonzalez v. Seff. 


Rumpole will probably be voting for Gordo, Newman, and  Seff. However, we think Mr. Kuntz and Mr. Alvarez are fine candidates.  There is a very unsettling back story behind why Judge Newman was challenged and in our opinion whether or not it is true, Judge Newman clearly deserves to be re-elected. 


See You in court. 

LAST MONDAY IN JULY

Our long hot summer is half over as July comes to a sizzling conclusion this week, and not a moment too soon.


It was over 100 degrees in the Baltimore/DC area this weekend and temperatures approached 100 from Bahstan to NY and Phiily as the eastern seaboard baked under a summer temperature inversion.




We don't know all the facts, but it appears Judge Illona Holmes in Broward sentenced a former Police Officer to 60 days in jail for hitting and killing a pedestrian while driving at speeds that exceeded 90 MPH.




DAVID RESPONDS:


Mr. Markus seems to think that we're "picking a fight" with him over the issue of whether an attorney should ever promise in opening statement to put his/her client on this stand.
We object.
We're not fighting, we're having a discussion. Here was part of Mr. Markus's response on his blog:


And I agree that in most cases, you can't make that promise. But you can't have hard and fast trial rules. Sometimes, it's worth taking that risk in opening. Every case is different, so I have only one rule of trial practice -- there are no hard and fast rules. 



Rumpole says: Of course Mr. Markus is right. And while we can envision cases where it may seem advantageous to promise the jury that your client will testify, we stand by our prior analysis- the risk of the foundation of the trial changing during the testimony and forcing the attorney to go back on his/her promise is not worth the reward. But to quote the noted trial expert Felix Unger: "Legal minds may differ." And certainly who can argue with Mr. Markus's success?


But here is the master:

RUMPOLE'S SEVENTH RULE OF DEFENSE

TROPICAL STORM BATTERS MIAMI! WIND AND RAIN SEND RESIDENTS SCURRYING FOR SHELTER. CHANNEL 7 IN HYSTERICS!

TRIVIA ANSWER: We forgot to answer that Joyce Cohen wore a black dress to court on the day she was convicted. Alan Ross for the defense with Bob Amsel and both were at their considerable finest during the defense; and an absolutely brilliant job for the prosecution by two of the very best trial attorneys the Miami SAO will ever see: (Now West Palm Beach Judge) John Kastrenakes and Kevin DiGregory. Not many of us who watched it will ever forget Kevin DiGregory sitting down during closing argument and remaining silent for the five minutes that was the time between when Joyce Cohen said she found her husband's body and when she called 911. He just sat there in silence for the full five minutes. It was a very powerful part of the closing argument.

BREAKING NEWS: BECAUSE OF THE TROPICAL STORM THAT IS PASSING BY THE KEYS AND INTO THE GULF, ALL COURTS IN MONORE COUNTY WILL BE CLOSED SATURDAY. The bars will remain open as long as possible.

Rumpole's 7th Rule of Defense: "Never ever tell the jury in voire dire or opening statement that your client will testify. Ever. No exceptions."

Our friend and colleague David O Markus, who knows one or two things about winning a jury trial for the defense vehemently disagrees with us. While we leave it to David to fully elucidate his theories, he believes that establishing credibility with a jury is paramount and that overrides our reasons for never revealing that your client will testify.

We feel there are two important reasons why you should never reveal that you client will testify:

(in order of importance)

1. All warfare is based on deception*. When you give the prosecution a few days or a few weeks notice that your client will be testifying, you are ensuring that they will be more prepared to cross examine your client. Trials are stressful events. There is always a lot to do. Creating uncertainty in the prosecutor on whether your client will testify creates an on going dilemma for prosecutors- when the trial ends for the day how much time (if any) do they devote to making notes on the testimony of the day to cross examine your client on? With so much to do, and without knowing whether your client will testify, you are increasing the odds that they will not be as prepared when your client testifies then if you had given them advance warning when the trial started.

Rumpole's seventh rule of defense interlocks with Rumpole's First Rule of Defense: Avoid Putting your client on the witness stand at all costs."

When your client testifies, all rules of reasonable doubt go out the window. Regardless of how weak the prosecution's case is, the jury mostly decides the case based on how believable your client was on the stand. Most defendants (not all) will not do a great job on the witness stand no matter how well you prep them. So when deciding whether to take a case trial, a paramount decision is "can you win the case without your client testifying?"

If you decide your client will testify, then you still maintain an advantage by keeping the prosecution in the dark.

All warfare is based on deception. Hence, when able to attack you must seem unable.
When using forces, you must seem inactive; when near, make the enemy believe you are far away; when far away, make him believe you are near.

Hold out baits to entice the enemy. Feign disorder,
and crush him. *

2. Trials are unpredictable. As we currently see in the Blogo trial in Chi-town, many unsuspected things can occur during the trial. What seemed a probable occurrence six weeks ago in voire dire, may look entirely different after the prosecution rests.

The credibility you gain in promising the jury that your client will testify is not worth the credibility you lose when you don't put your client on the stand after promising to do so.

If he is in superior strength, evade him.

If your opponent is of choleric temper, seek to irritate him. Pretend to be weak, that he may grow arrogant.

If he is taking his ease, give him no rest.
If his forces are united, separate them.

Attack him where he is unprepared, appear where
you are not expected.

These military devices, leading to victory,
must not be divulged beforehand." *

In the final analysis, when you tell the jury in opening your client will testify three bad things can happen: 1- the prosecution will be more prepared for cross; 2-the foundation of the case will unexpectedly shift and you will lose credibility when your client doesn't testify; 3- your client will testify and do a bad job.

One good thing can happen: You buy some credibility with the jury.

When you practice deception and not reveal your strategy two good things can occur: 1- the prosecution will be unprepared (or certainly less prepared) when your client does testify; 2- If the foundation of the trial changes, you will not be in the position of explaining in closing why you went back on your word.

There are no negative consequences with not telling the jury at the beginning of the case that your client will testify.

In our opinion, the risk/reward analysis comes squarely out on the side of never ever telling the jury at the beginning of the case that your client will testify.

See you in court, not saying nuttin about whether our client will testify.

** Sun Tzu, The Art of War.

SUTTON GUILTY

Christopher Sutton was found guilty Wednesday of conspiring and soliciting the death of his mother and the attempted first degree murder of his father. The title links to the Herald article.

This was a difficult and heart wrenching case. Mr. Sutton's father, who is a well known attorney in Coral Gables, survived the attack-although he was blinded and suffered facial disfigurement- and was called to testify by the prosecution in the case against his son. After his testimony, Mr. Sutton was allowed to remain in the courtroom for the remainder of the case. With the verdict of the jury Mr. Sutton has lost both his wife and his son.

Congratulations go out to prosecutors Kathleen Hoague and Carin Kahgan.

Mr. Bruce Fleisher now spends that first sleepless night that afflicts most trial lawyers after a negative verdict. There will be little consolation for him in the knowledge of having done his best; such thoughts are overwhelmed with the inconsolable pain of having lost a difficult case.

This case reminded us in many ways of State v. Joyce Cohen. Many long time habituates of the REGJB remember one of the most famous, sensational, and hard fought murder cases of our time. Ms. Cohen was accused of arranging the murder of her husband Stanley Cohen, who was the owner of a successful construction company.

In a case that spanned from Miami to Steamboat Springs, Colorado, the pretty Miami Socialite was convicted after a six week trial.

Rumpole Trivia quiz: Who was Ms. Cohen's attorney? Who were the prosecutors who represented the State? Who was the Judge? And what colour dress did Ms. Cohen wear in court on the day she was convicted?

ET TU CLARENCE?

UPDATE: There's a new blog in town called Kosher Meatball law blog.

And of course, running the preeminent "go-to" legal blog in Miami as we do, the noodles at the meatball blog are trying to curry favour with us by re-printing some of our recent blog rumblings. While we much would have preferred them coming to us, hat in hand (electronically) and asking permission to run a blog in what is clearly our town, in the interest of benign neglect, we decided to give them a plug. Pull up a chair, put on a bib, and manga. (The meatballs go great with some nice mozzarella sprinkled on top. Give it a try.)

Justice Clarence Thomas is an individualist. He does not believe in affirmative action. As a strict constructionist conservative, Justice Thomas believes in the primacy of the individual. The United States was created as a government of the people and government's role is limited at best. Justice Clarence Thomas believes that merit and talent should be the only factors in which an individual is promoted. Ethnicity, race, or anything other than the particular qualities of the individual should not apply. His opinions make all of the above perfectly clear.

At the Utah State Bar convention, Justice Thomas had this to say:

Thomas said his biggest concern is the Ivy League composition of the court and its lack of regional representation. The current court has five justices from the New York/New Jersey area, two from California, one from Georgia and one from Indiana.

“Does that sound like this country?” he asked.

Hmm....sounds like Justice Thomas wants to see the geographical location of a particular individual weighed against the makeup of the court as a consideration for nomination.

To put it more bluntly, it seems as if Justice Thomas would want to see a less talented Judge from lets say Oregon nominated to the Supreme Court over a more talented individual who graduated from Yale, if the court at the time was comprised of "eastern intellectuals."

Not necessarily the thoughts of an individualist. More like the thoughts of a collectivist statist whose particular ox has been gored. For shame Justice Thomas.

TRIAL UPDATES:

State v. Sutton is going to the jury. Final arguments were heard Tuesday. This is a compelling case where the trigger man testified that the son of Coral Gables attorney John Sutton hired him to kill his parents. John Sutton survived the attack, but he was permanently disfigured. His wife was murdered. Carin Kahgan and Kathleen Hoague for the prosecution and Bruce Fleisher for the defense. This is going to be a tough one, and we're not looking for a verdict on Wednesday. Perhaps Thursday, and a little birdie whispered to us that the prosecution is worried.

US v. Blagojevich: This one is less worrisome for the prosecution, as the tapes against the former Governor have been damming. Crude and vulgar comments mixed in with petty personal concerns have the loudmouth Chicago Pol (whose first name is actually Milorad) on the ropes. His brother who is charged in five of the 25 counts took the stand and was eviscerated on cross by the prosecution. The taped evidence against his brother is much less compelling than against the former governor. That's why our Chi-town spies are telling us that despite months of bragging about his upcoming testimony the defense team headed by the spectacular team of Sam Adam, Jr., and his father Sam Adam Sr., are working hard to keep their loquacious client off the stand. One problem- the defense made a spectacular error in promising the jury in opening statement that their client would testify.

Runpole's seventh rule of defense: Never ever ever tell the jury your client will testify. Never. Ever. You can never be sure how a trial will turn out, and if you are certain your client will testify there is no reason to let the prosecution know that. Keep them in the dark as long as possible. The only exception to this rule is.....NONE. Never ever ever ever tell the jury in opening statement that your client will testify.

TEXTING

UPDATES BELOW:

Reprinted (without permission- we didn't ask, but we're sure they don't mind) from the Broward JAA Blog.

The following is an actual series of texts between an assistant public defender (in green) and an assistant state attorney (in white). From Broward, of course.

Query: Is it OK for attorneys who are opponents to text each other on their private cell phones?

We think the answer is yes. We often give our cell phone number to prosecutors and ask them to text us regarding issues that may arise during the pendency of a case. However in this circumstance it appears the ASA didn't want his/her private cell phone used in communication about cases. While it may be shocking to find out that a prosecutor in Broward of all places is uptight, attorneys have a right to privacy (See, Griswald v. Connecticut, 381 U.S. 479 (1965) ) and the prosecutor had a right to tell the PD to cut it out (although threatening to call the police was a bit much.)

UPDATE: We received this comment:

I am a Broward criminal defense attorney that is familiar with each of the parties. Trust me, I wouldn't want this particular PD bothering me on my cell phone either. Especially when the context of the texts appears to be: client gets probation when state wants more, court imposes probation, state brings up restitution, PD gloats about the successful departure sentence and the victim's comments.

The PD was once investigated for a road rage agg assault, and later pushed a female ASA into a wall when plea negotiations broke down. The ASA is a standup guy. Trust me, things aren't always as they seem.

Monday, July 19, 2010 10:28:00 PM

MORE FROM BROWEIRD:

Our friends at the JAA Broward Blog report that Judge Matt Destry, who is on the ballot this August and facing a challenge from Attorney Rob Jakovich, is busing in a load of seniors today from a local Broward Condominium, to watch an attempted arson trial that the brave judge is presiding over. The jury was picked on Monday.

This just doesn't pass Rumpole's smell test. What if the State doesn't prove it's case? Will the Judge be more or less likely to JOA the case? It's obvious that most elected officials don't get elected by promising to be "fair to criminals". "I'll be tough on crime" is what most politicians, including Judges, want their message to be.

We wouldn't want to be the defendant in this case.

Meanwhile, there will be a bunch of "altercockers" (yiddish for "old fart") sitting in the courtroom, complaining about the seats, asking for coffee, and wondering what a nice judge like that is doing in a courtroom with a "vance" (yiddish for "bedbug")

Oy Vey.

SNIPES DOWN; TEMP UP. A

Wesley Snipes conviction and 3 year sentence (for misdemeanors no less) was affirmed by the 11th Circuit and guess who has all the coverage on his thoroughly federal blog?

Willy Ferrer was sworn in as the US Attorney for The Southern District of Florida on Friday (yawn) and after all the speeches and blah blah blah everyone went home on Friday no worse for the wear. Eric Holder the US Attorney was present, and that was nice to see, especially since he picked perhaps the only place in the country hotter with more humidity than DC.

Good Monday morning. It's another hot Monday in Miami where male attorneys still have to wear coats and ties to court. Under any other circumstances if you saw a man walking down the street wearing a coat and and a tie where it was 98 degrees and 95% humidity you might be tempted to question his sanity. Except if he was a lawyer on his way to court.

What can Brown do for you? Not much yet.

The Republicans (Motto: "science shmiance" ) tell us that there's no such thing as global warming.

The NY Times reports that NASA says that the January-through-June period this year was the hottest globally since measurements began in 1880. ...

Glacier National Park now has only about 25 glaciers, compared with around 150 a century ago. In the Himalayas, the shrinkage seems to be accelerating, with Chinese scientific measurements suggesting that some glaciers are now losing up to 26 feet in height per year.

HOW NOT TO GET OUT OF A TRAFFIC TICKET...

Especially if you've just been offered a job as a prosecutor.

1) Don't curse at the officer; 2) Don't play the race card; 3) Don't dare the officer to arrest you for having illegally tinted windows and mention that you were just hired at the prosecutor's office.

Having done all of the above, Ms. Lisa Jones-Hall still got her ticket....and lost her job she hadn't started yet. Thanks to ATL for this gem.

ANOMALIES....

And just to pile on because it's Monday, we leave you with the disturbing possibility that not only is the cap on the well in the Gulf not working, but that BP may have screwed the pooch for the surrounding seabed- meaning that even when the well is capped the oil may still leak from the seabed for.....well forever.

From the BBC

But in a letter to BP chief managing director Bob Dudley, Admiral Allen said: "Given the current observations... including the detected seep a distance from the well and undetermined anomalies at the well head, monitoring of the seabed is of paramount importance...

See you in court, wearing a coat and tie.

HOW EMBARRASSING

To be a judge and be facing reelection, and to have your web site suspended for non-payment.

Just one guess before you click, as to which distinguished county containing the most distinguished group of judge does this rocket scientist belong?

Click Here. for the website, and

click here for the distinguished member of the judiciary.

DOG BITES MAN:

The PROSECUTION turned down an offer from the defendant in a first degree murder case for a plea of guilty and a 25 year prison sentence. Kimberley Boone was on trial for shooting and killing her husband. The defense was mistake.

The case went to trial in Central Florida (motto: ) and the jury found the defendant......Not guilty. Here.

The jury was out 2 1/2 hours.

Lesson learned: When on trial in Central Florida, always try and hire a lawyer nicknamed "Buck".

Congrats to Francis Wesley "Buck" Blankner Jr.

THIRD DCA ROUNDUP-BONUS SUPREME COURT CASE EDITION.

Because after all, this is a legal blog and not a nutrition blog. You wanted a legal discussion? You got it.

Just Do the right thing Reemberto.....

In McDonald v. State, the defendant was convicted and sentenced as a GORT (trivia Q- which classic SCFI movie from the 50's has a robot named Gort? Bonus Q- what are the words in that movie that must be told to Gort to save the earth? Hint. Ask Klatu. )

He filed a rule 3.850 challenging his eligibility as a GORT offender and the state confessed error. The case was remanded and the defendant was sentenced without the GORT sanctions. Fast forward to his release and he is told he must register as a repeat offender which he clearly was not. He filed a motion before Judge Diaz and inexplicably, it was denied. Not any more.

There were six criminal opinions released on July 14. Five of them are one line affirmed opinions with a cite. McDonald was the only written opinion of substance. Must be a lot of Judges on summer sabbatical on the campus of FIU.

BONUS FLORIDA SUPREME COURT DECISION:

QUERY: Does the reading of Miranda warnings by a police officer during an otherwise consensual encounter turn that encounter into a seizure under the 4th Amendment?

The 2nd DCA said "yes", the 4th DCA said "no" , (the 3rd DCA questioned the viability of the 4th amendment anymore and chastised the officer for reading Miranda rights when a confession is clearly covered these days under the "inevitable discovery once they beat him long enough" rule.) and the Florida Supreme Court said........

In Caldwell v. State, that reading Miranda warnings does NOT turn a friendly chat with Officer Fluffy into a seizure under the 4th Amendment.

We note from the outset the divergent positions taken by the two opinions certified to be in conflict. For its part, the Fourth District seems to have concluded that as a per se matter, an officer‟s reading of Miranda warnings during an otherwise consensual encounter will always result in a Fourth Amendment seizure. See Raysor, 795 So. 2d at 1072. By contrast, the Second District has reasoned that because the warnings are intended to be a protective measure, Miranda warnings given during a consensual encounter may contribute to a seizure finding within the totality-of-the-circumstances framework. See Caldwell, 985 So. 2d at 605. Thus, we are presented with two questions of law. First, does the reading of Miranda warnings result in a per se seizure under the Fourth Amendment? Second, if the first question is answered in the negative, what impact do the warnings have within the totality-of-the- circumstances/reasonable person analysis set out in Mendenhall?...

In Popple v. State, 626 So. 2d 185 (Fla. 1993), this Court identified three levels of police-citizen encounters. The first level, a “consensual encounter,” involves minimal police contact and does not invoke constitutional safeguards. During a consensual encounter, an individual is free to leave at any time and may choose to ignore the officer‟s requests and go about his business. Popple, 626 So. 2d at 186. The second level is an “investigatory stop,” during which an officer “may reasonably detain a citizen temporarily if the officer has reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” ...

The issue we must resolve in this case is whether Officer Crisco‟s actions transformed what began as a first-level consensual encounter into a second-level investigatory stop. See Popple, 626 So. 2d at 186....

We emphasize that Miranda warnings are not required in any police encounter in which the suspect is not placed under arrest or otherwise in custody under Ramirez. See McCarty, 468 U.S. at 440 (noting “the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda”)...

We first address whether Miranda warnings, as a per se matter, will always

transform a consensual encounter into a seizure under the Fourth Amendment...

As we noted in G.M., “[t]he United States Supreme Court has consistently maintained that per se rules are inappropriate in Fourth Amendment analyses of whether a „seizure‟ has occurred.” 19 So. 3d at 978...

In accordance with the cases discussed above, we hold that to the extent the Fourth District determined that the mistaken administration of Miranda warnings results in a seizure as a matter of law, its conclusion was error. The proper test is whether, based on the totality of the circumstances, a reasonable person would feel

free to end the encounter and depart. While an individual act on the part of an officer may constitute a show of authority that contributes to a seizure finding, we again reject the notion that any single factor, taken alone, will be conclusive in every case in which it appears

Having rejected the Fourth District‟s conclusion that Miranda warnings will always result in a seizure during an on-the-street police encounter, we must determine to what extent, if any, Miranda warnings increase the coercive nature of such an encounter...

Miranda warnings are a formality of arrest and are required only at the time of an arrest or prior to custodial interrogation. Further, the warnings are associated in the public mind with the spectacle of an individual being placed under arrest. Therefore, it is not unreasonable to conclude that an individual who is given Miranda warnings during what begins as a consensual encounter may interpret those warnings as a restraint on his or her freedom....

Based on our above discussion, we believe that the reading of Miranda warnings during a consensual police encounter might add to the coercive nature of that encounter under at least some circumstances. ...

Further, we hold that Miranda warnings do not result in a seizure as a matter of law. While we do not discount that possibility that Miranda warnings may increase the coercive atmosphere of a

police-citizen encounter outside the context of a custodial interrogation, we find that the warnings did not result in a seizure in this case.

Rumpole says: We're going to form the Lawyers for Per Se Rules club. Who's in?