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

 

HERE'S YOUR NEW CIRCUIT COURT JUDGE IN ACTION

 Using runners to solicit cases. Yup, the judiciary was upgraded with this election. 

Will the Florida Bar/JQC act on a lawyer/Judge employing non-lawyer runners to go to accident victims' homes to solicit cases? Or will they sweep it under the rug?

Will Judge Aponte be appointed as a Referee in Bar cases? We think she should. We think she should get EVERY Bar complaint about a lawyer soliciting cases. It is, after all, her specialty. 

For those of you who defend the Judge- please write in. 

For those of you who believe the judiciary was improved with this election - please write in. 

We know our new judge knows this rule- she is, after all a Judge. But for the rest of us, here is the rule in question:

Direct Contact with Prospective Clients - Rule 4-7.18(a) A lawyer may not contact a prospective client in-person, by telephone, telegraph, or facsimile, or through other means of direct contact, unless the prospective client is a family member, current client, or former client. 

Uz Cate Gui Case Felice Tt i Lien by HR on Scribd

 

Judges are held to higher ethical standard, aren't they?

 Rumpole's rules for Life:#2: Be careful what you ask for in life...you may get it.

THE WEEK THAT WAS

 Let's wrap this week up. 

Kudos to our Clerk Harvey Ruvin who was groovin to an ABA award (The Yegge Award for outstanding contribution to judicial administration which is sort of like the Nobel Peace Prize but for Clerks)  for dragging the Clerk's office into the 21st century with electronic filing (shhhhhsh...we won't tell about misdemeanor criminal paper files if you don't). 

The NBA is back in session thank goodness. We could hardly bear the thought of spoiled millionaires who work for spoiled billionaires not playing a game during this time of crisis. Not that one of them could hold a candle to the 69-70 Knicks. Dollar Bill Bradley, Dave DeBusschere, Walt "Clyde" Frazier, Cazzie Russell and Dick Barnett,  and of course the Captain Willis Reed. Add in Phil Jackson, and Reed coming out in Game Seven of the Championship and scoring the first  four  points against the Lakers and Wilt Chamberlin, after Reed missed Game six with a torn thigh muscle, and you have the makings of an all-time great team. 

But none of the players today can measure up against the greatest basketball player of all time- Earl "The Goat" Manigualt. 

The Florida Supreme Court told Governor Ron No Mask DeSantis to drop dead. They invalidated the appointment of Judge Renatha Francis. Basically The Supremes said "an appointment is an appointment is an appointment". It begins the day it is made and not at some future date when the appointee is eligible. In Judge Francis' case, after a long and extensive search for the most experienced and qualified candidate to be a Justice of The Supreme Court, DeSantis, decided, for no other reason (*cough* cough*) that Judge Francis had the right stuff. Uno problemo: she did not meet the technical qualifications to be a justice, namely a member of the Bar for ten years. But DeSantis decided a way around that technicality by deciding that Judge Francis would not be sworn in until the ten year mark passed this fall. The Supremes said no way Ron and invalidated the appointment. 

This of course places into question the Governor's plan to nominate several promising law students for the 3rd DCA once they graduate, pass the bar, and are sworn in as lawyers. 

If DeSantis is able to re-nominate Judge Francis after she crosses that milestone and is a member of the Bar for ten long years, then wouldn't you want to be a fly on the wall in chambers? Sort adds some tension to the Supreme Court lunch room. There's always Backwoods Crossing for a meal. 

It has been a long strange week in a long and strange year. We dodge a bullet with Hurricane Laura and we still have a Governor who does not believe masks matter.  

Stay Safe. Stay Sound. Stay Sane. 

HONORING ALL VICTIMS OF VIOLENCE

 Yesterday NBA players refused to play playoff games because of a shooting of an unarmed black man in Wisconsin by police officers.  That is their right and their protest has meaning. The epidemic of police brutality extends well beyond the publicized shootings and killings this year. 

We would support a boycott of one day of games honoring all those families whose lives have been destroyed by minimum mandatory drug sentences which disproportionally are applied to people of color and people of low economic means. 

But we also (surprisingly) ask this question:

When was the last time a sporting event had a moment of silence, much less canceling an event, when a law enforcement officer was killed in the line of duty?

There are bad people and some of them are law enforcement officers. Their ability to wreck havoc on society is magnified because of the power their job gives them. 

But the vast majority of law enforcement officers are husbands and wives and brothers and sisters and sons and daughters who leave home every day with the unspoken fear that they may be forced to place their life in jeopardy to do their job.  

65 law enforcement officers have died in the line of duty in 2020. That is more than one a week. We do not recall seeing any headlines, any protests, any cancelations, any moments of silence for any of these officers. And yet their families wake up every day and struggle to get by without their father or mother or son or daughter that for the most part society has forgotten and moved on. 

Protesting police brutality is appropriate and long overdue. So is honoring the vast majority of officers who do their job every day. 

WEAR A MASK

 Update: Let us call today's post potpourri. A few topics are discussed including email chains, the UM campus virus outbreak and a no-mask shaming website:

Wear a Mask

The is mounting evidence that the corona virus is spread via tiny aerosol droplets. The CDC and WHO acknowledge that corona is spread through airborne transmission from larger droplets from coughs or sneezes. Which is why those organizations recommend distancing at six feet. But the fact of the matter is that the virus is spread through aerosol transmission of droplets one micron in diameter. Larger droplets from a cough or sneeze will fall after a person sneezes or coughs. Gravity affects those larger droplets, although six feet is not enough distance as a droplet expelled by a sneeze can travel close to twenty feet. 

Aerosol transmission is much more difficult and deadly. A tiny aerosol can linger in the air several hours. Therefore, when you are out walking or running or biking and you are behind a runner or biker who is infected, even a distance of twenty or thirty feet may not be enough to protect you as you walk or run or bike through the air they expelled. While it is much safer to be outside then inside on  a factor of ten, it is still dangerous to be outside in a crowd or in a crowded area where people are exercising. 

So just wear a mask. It protects you and it protects the people around you. 

There are frequent reports of airborne aerosol transmission in the media. 

Here.

And here. 

Rumpole's mask guidelines:

Car: No Mask

All shopping: Mask

Walking outside: No mask if no one is visible within a two block radius. Otherwise, mask. 

Gym; hair or nail salon: Mask at all times. 

Restaurant: We strongly suggest take out. NEVER eat inside a restaurant. Avoid eating outside unless other tables are more than 20 feet away AND you are UPWIND of the other tables. 

Zoom Meetings and court hearings: Wear a mask if it is in Broward, otherwise no mask needed. 

EMAIL CHAINS

We think four or five emails are enough for one chain. After that it is just too much to keep track of. Rumpole email rule: five is enough. Then start a new chain. 

UM OUTBREAK

There is a virus outbreak at the UM Coral Gables Campus. Many students are sick, but lets make sure we get that football going. Football is life and these days football could be death.

MASK SHAMING 

What do you think about a Miami No Mask shaming website. Put up a site and solicit pictures of people in public not wearing masks? Just a thought.  

SHAKEN, NOT STIRRED

 The greatest hero of American movies, is, of course, British. 

Bond. James Bond. 007. 

And the greatest James Bond is Sean Connery, who turned 90 Tuesday, August 25. 

Yes we have issues about judges and elections and Covid and law students who cannot take the Bar. But this is important. 

Happy Birthday Sean Connery. Starting with Dr. No, you were the best (Blog trivia- name the prosecutor(s) we hung the appellation "Dr. No" on). 

And BTW, if you want to watch a great non-007 movie with Sean Connery, you will not find a better one than Finding Forrester. 

Have some cake today. And need we say it? Tonight, before or after dinner, have a martini. Shaken. Not stirred. 

Oh. One more thing. You nasty people who put up comments attacking us and who you think we are (if you only knew) and how bad the blog is and such. Take a look to the right of your screen. Go ahead. You can do it. See that counter? 7 MILLION PAGE VIEWS. 

Here is our advice to you. P' off as the British say. Go watch Fox News. Go Play in traffic. You will never be the writer we are and the lawyer we are and you have never in your small pathetic lives ever created anything like this. 

But, and this is important: 

Have a nice day.  Wear a mask. You haters contributed to those 7 million plus page views.  

SUPERVISED RELEASE

BREAKING: Dolphins announce 13,000 fans will be allowed in the stadium for football games. Marlins expected to follow suit (this sentence is a sarcastic one). Let us examine this scientifically. 

There is a virus with no known cure or preventative vaccine.  The virus is transmitted though respiration (people breathing). The Miami Dolphins are proposing bringing 13,000 people together to watch a game. A game! Well, we will say this- for those of you who have said you would die for football or without football- this is your chance. Tell us where to send the flowers.  Morons. 

Well, not exactly SR- but a supervised practice order for all the new lawyers who were de-barred from taking the Bar. 

The uproar over whether this year's crop of newly minted lawyers will be allowed to work and practice and learn the craft we perform so well has been answered by the Florida Supreme Court (Motto: "We have a heart after all"). 

The Great Oz and company issued an administrative order (below) turning lose the hordes of hungry post grads on to our field of play. 

Props to Attorney Brian Tannebaum who worked gratis in helping the new lawyers (memo to the new lawyers- get used to working for free). 

Couple of practice tips: 

Don't handle cases you are not qualified for, or you could be--hypothetically speaking-- disbarred from say...hmmm.. bankruptcy court if you take a case you are not qualified to handle. 

Do not work for out of state lawyers not licensed in Florida. Do not work for non-lawyers. They are just using your bar card. 

Do not work for firms that use illegal and unethical means of getting clients. You will get sued and your former clients will spill the beans on your unethical conduct which could (and should) result in your disbarment. 

Find a mentor. A more experienced lawyer you can trust. You will encounter ethical issues throughout your career. They never get easier. Run those questions by your friend/mentor. 

Learn to listen more than you speak, especially in dealing with someone who is upset. Most of the time all the other party wants is someone to listen to their complaint. 

Your reputation is all you have. You will spend a lifetime building it and it can all go away in thirty seconds on the record. Let your handshake and your word be your bond, even if in the end it is to your detriment. There is nothing more important than building a reputation that you can be trusted. 

If, somewhere along the line you violate rules one, two and three, then apparently you are qualified to be a Circuit Court Judge in Miami-Dade County. But all that glitters is not gold, and be careful what you ask for in life because you may get it. 

Here is the order for your perusal. 

AOSC20-80 by HR on Scribd

GOOD NEWS MONDAY AND OUR CHOICE FOR A NEW JUDGE TO BE ASSIGNED TO THE COMPLEX LITIGATION DIVISION

 Mondays should be all about good news so lets jump right in to it. 

Two hurricanes in the Gulf will miss Florida and strike near New Orleans this week. LA 2-Fla 0. This is the type of contest you want to lose. True this is bad news for Louisiana, but we do not have as many readers there.

NASA is tracking a Near Earth Object (NEO) that has a .5% chance of striking earth just before election day. The size of the object is six and a half feet long. Who says the good lord does not play politics?

If you are a judge elect and have a pending bar complaint (or two) in which probable cause has been found,  then you are not out of the woods. The JQC will pick up the ball and take it over the goal line. We have two such judge-elects facing this prospect.  We put the odds of one of the two of these two distinguished individuals being suspended or disbarred above the odds of an asteroid striking the earth before election day. 

Speaking of Judge elects, we call upon Judge Soto to let the voters' decision have consequences. New judges will often be "hidden" in juvenile or delinquency courts as they gain experience. This is not to diminish the hard work of the dedicated judges who serve in those positions. 

But the voters of Dade County elected Judge Aponte to a circuit court position without her ever having tried a case. It is said she has never taken a deposition. But the voters have spoken. She was determined to be the better qualified of the two candidates. 

So Judge Soto please assign Judge Aponte to the complex litigation division of civil court. Let her handle the biggest and most complex civil cases around. She worked for a plaintiffs' firm that demonstrably and illegally used runners to solicit clients from accidents scenes you say? So what- is what the voters of Dade said. 

She has never taken a deposition and is unfamiliar with the rules and laws of discovery and complex litigation? Who cares!

 How can we have a judge who never tried a case preside over complex trials? Elections have consequences we say- let the chips fall where they may.

 Do not "hide" this judge in juvenile or dependency court. Our children are much to important to place in her inexperienced and unethical hands. Put her in complex litigation and let the civil lawyers, who did not raise a hand in this contest, deal with her. That's of course if the JCQ doesn't deal with her first. 

Lawyers: wherever Judge Aponte ends up, consider filing a motion to recuse because you client does not feel s/he can get a fair trial from a judge who worked for a disbarred lawyer for a firm that illegally employed runners to go to accident scenes to solicit cases. The ethics stink to high hell. In other words- a community shunning of the "judge" who wants to play in the big leagues. We will be beating this drum until and through January 2021. 

That's what we say. What say you? 

BAR NONE BAR ALL

 A fascinating thing is occurring within the hallowed halls of FACDL.  But to understand the dimensions, you first have to understand the contretemps surrounding it. 

As self-absorbed lawyers, few blog readers know that due to a software snafu the Florida Bar exam was recently canceled. What to do...what to do?  Three thousand or so erstwhile lawyers were denied the opportunity to join the brotherhood and sisterhood of the shark. There is a rumor that the exam will be rescheduled in October, but nothing is for sure yet. 

Enter FACDL and the question of whether new lawyers should even take a Bar exam. And you thought police departments were the only thing millennials want to defund. DEFUND THE BAR! DEFUND THE BAR ...if you chant it long enough, it is catchy. 

What position should FACDL take? Here is the juicy part of the story. However, because FACDL listserv emails require code word secrecy clearance, here is the only part of the myriad of email exchanges we can print:

It is, as we all know, a violation of biblical proportions for us to reprint an FACDL email. (Memo to FCADL: if you don't want your emails on the blog, tell your damn members to stop sending them to us, willya?). 

The substance of the issue is as follows: Be it resolved, FACDL is for or against admitting as CLIs on a continuing basis the law students who covidly cannot take the Bar. Some members voted "ay", others "nay", and some "present". At least one FACDL board member told the peons to pound salt and that if they didn't like the Board's position to run for the board next year (the legal lingo was "we will do what we want. Kindly act accordingly"). 

Some members howled in response that the Board was elected to do what the members wanted, not what the board wanted. Suddenly in this yawn inducing mess we sat up and took notice. Unknowingly, FACDL stumbled upon an age old question of  democracy: whether elected representatives should vote as they think best,  or merely as their constituents want them to vote. 

While FACDL members were busy fighting, we retired inspired  to our library and pulled out Madison's Federalist #10:

Among the numerous advantages proposed by a well constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction... Complaints are everywhere heard from our most considerate and virtuous citizens ... that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided not according to the rules of justice and the rights of minor parties but by the superior force of an interested and overbearing majority.

So as the emails fly through the bits and bytes of the digital age, and FACDL members fight over whether their Board votes the will of the members or the best singular judgment of individual board members, take solace you weekend warriors of the listserv that you are debating nothing less than a problem addressed by the Founding Fathers (is that a politically incorrect term? Can we still use "founding fathers" or  will the blog  be defunded and the statute being erected to Rumpole in parking lot 26 that no one uses any more be tumbled like a cheap Saddam Hussein knockoff?).

Defund the Bar? Go for it. Admit law students without scrutiny? Why not? As long as they wear masks on Zoom hearings. We care not. 

But resolving the classic question of representative government; this will keep us up until the early hours of the morning, perusing the emails being sent to us as we search for our next James or Jane Madison. 

PS. We neglected to mention that Attorney Brian Tannebaum is representing the law students here gratis.  As an avowed anti-altruist, that offends us of course. But he means well. There are many Bar applicants who are facing severe financial hardships. One is on the verge of homelessness. Others, having devoted years in school, were counting on jobs that are now as far away as ever.