GERALD KOGAN

 Gerald Kogan passed away on Friday. He is known for being the former chief justice of the Florida Supreme Court, but he was so much more. We knew him as a Miami Dade Circuit Court judge, and then saw him frequently when he was retired. His lecturing against the inequalities of the death penalty was one of the standouts of his time in retirement. 

Trivia- At some point after leaving the Dade SAO, where he started as a State Attorney in 1960, he formed a firm: Kogan and Kogan. Who was the other Kogan? 

Jack Blumenfeld, an REGJB and Miami legal legend in his own right, wrote us with this memory which says so much more than we can: 

Rumpole, I’m sure that you will get many comments regarding the devastating loss of 

Jerry Kogan. Most will come from young and not so young lawyers who practiced before 

him on the Circuit Court and/or the Supreme Court. But, there are a few of us older

 (guess ancients would be more accurate) who go back to the 60s and 70s with him. 

I met him as a young ASA and tried many cases against him, especially as a Major Crimes 

prosecutor handling murder cases. Unfailingly, he was brilliant. His closings made you 

wonder if you would have voted NG if you were a juror, even when you knew the 

defendant was guilty. But, he was also unfailingly a true and consummate professional. 

He NEVER made it personal. He treated every lawyer-even 

adversaries- with respect. That didn’t change when he took the bench either, as many can

 attest. When I decided to leave the SAO, he invited me to practice with him and a year 

later made me his first law partner; a junior partner for sure, though he never treated

 me as anything but an equal. What an experience!! We got a young law clerk from 

UM Law, who seemed to have some promise. His name: Alan Ross. 

Can you imagine a better place to practice in those days?

More importantly, I knew him as a human and it was as a human that he excelled. 

He was one of the most decent, honest and respectful person I have ever met.

 Yes, he was a great lawyer and jurist, but, he should also be remembered as a great husband, 

father, brother and friend. He just did life the right way.

Gerald Kogan made you proud you were a lawyer; especially proud to be a criminal defense 

lawyer. And he made me thank G d for allowing me to know and associate with him. 

Frankly, if we have displayed pictures of some of our colleagues who have left us, 

we should dedicate the entire 4^th floor in his name!!!

Well said Jack, and yes, his picture should be hanging in our beloved REGJB. All Judges in 

the REGJB are measured against the great and brilliant Judge Cowart. Deservedly so. 

But Judge and Justice Kogan should be in that discussion for all the reasons Jack Blumenfeld

has so eloquently written. 

COMES NOW RUMPOLE

BREAKING AND VERY SAD NEWS. ONE OF THE LEGAL GIANTS OF FLORIDA AND OUR NATION FORMER JUSTICE GERALD KOGAN HAS PASSED AWAY AT THE AGE OF 89. Justice Kogan was our own from Miami. An assistant state attorney in the 1960s, a Circuit Court Judge starting in 1980 whom we appeared before many times, appointed to the Florida Supreme Court in 1987, and CJ in 1996, Justice Kogan spent his retirement active in the law, lecturing on death penalty litigation, joyfully attending the FACDL Miami Dinners where the "Kogie" was awarded to a Judge in his honor, he was truly one of the good guys who never forgot where he came from. More tomorrow. 

This started as a discussion between bloggers on the use of "Comes Now" in legal pleadings. It has become a battle for the soul of our profession. Comes Now Rumpole, who rises in support of our soul.

Your favourite federal blogger Mr. Markus wants to throw it all away. He  is the new generation. The upstarts. The disruptors. "Comes now...." to start a pleading is archaic.  "The defendant wants dis case dismissed" is the world he is steering us towards. 

This is a discourse in etymology. Or as Mr. Markus would prefer, "we blogging 'bout language and stuff."  Either way, buckle up. 

 The legal profession is based, almost completely, on the respect for precedent and tradition. See, Marbury v. Madison: "The process (of mandamus) is as ancient as the time of Ed.2d. 1 Levinz 23". Marbury v. Madison, 5 U.S. 137, 153 (1803). Tradition was good enough for Justice Marshall, but not bloggers who work on top of garages. 

The traditions that lawyers have handed down over the years, decades, and centuries survive in recognition that our legal system comes from the common law of England. Many are the Supreme Court opinions that delve deeply into the English roots of a statute or legal precedent. We support decisions in 2021 with concepts from 1721 because of the belief that ideas that have stood the test of time are important. 

Judges wear robes. No one else does. Archaic tradition. Starting next week, it's shorts and t-shirts and sandals on the bench. Speaking of which, in what other forum in the world does one person sit elevated above all others? Not in church or temple or a mosque. Even the Resolute Desk in the Oval Office sits on the floor in the White House. Only in the archaic traditions of the legal world does one person sit on a  bench above others. And while we are at it, lets remove the term "bench" which is a lie. It's a comfy chair before a desk, with a big computer that the judge spends her days sending snarky texts to her judicial friends during court, right?

"Hello kids, welcome to your courtroom tour. That person wearing a Marlins t-shirt sitting before the desk in a big chair a few feet above us is the judge. Say hi to the judge. No Sally, we don't use the term 'your honor' anymore, it is archaic." Where else in our society is the term "your honor" used? It's old legalese so out it goes, right? 

Let's see Mr. Markus tell Judge Moreno or Judge Moore that starting next week he gets to sit in a recliner in the corner of his courtroom and that nobody will be addressing him as "your honor". We will do the bond hearing for free after that discussion. 

The very term "reasonable doubt" comes from the evolution of the religious beliefs of judging. In the middle ages jurors were instructed that they place the souls of themselves and their families in jeopardy for judging a man. Judging was disfavored by religion as only the almighty could judge. When the English common law adopted the reasonable doubt standard, an enlightenment came upon the courts. Mr. Markus doesn't like old language and traditions. Does he wish to replace the term "reasonable doubt" as well? It came into being in the 1700's. Enough is enough right? Or is his issue only with some  archaic terms that he subjectively doesn't like?  

We stand when judges enter a courtroom and you will not find that requirement in any law book or in any of the committee notes that Mr. Markus and his federal devotees love to debate on a Friday night over a bottle of wine. "Just sit already" is his preferred way to start a court calendar. 

The  United States Supreme Court has started every session since February 1, 1790  with "Oyez Oyez..........God save the United States and this honorable Court".  In the new world of Mr. Markus, court  would start a bailiff wandering into the hallway and placing two fingers in his lips and letting out a loud whistle with the phrase "alrighty then, let's get this show on the road!" And what about the term "bailiff"? The Oxford dictionary tells us the etymology of bailiff is from Middle English from  Old French "baillif". Mr. Markus may now prefer "The gal in the uniform helping out in court". 

Every time Rumpole stands before the jury in opening and closing statements it is a solemn moment. Regular citizens are called for service before the bar. The Courtroom is hushed as we stand, all eyes on us. "May it please the Court" we rumble. And then with a slight bow towards our opponents "and the learned counsel for the prosecution"....and we are off to the races. 

Presumably Mr. Markus will leap to his feet with a "Yo yo yo Mr. M in the house. The defendant is innocent, she didn't do the crime. So find her not guilty and stop wastin our time."

By the way why do we call it "The Bar"? Drinks aren't served (which wouldn't be a bad idea at times). 

When we file a plea of not guilty, we come before the court, battered by an arrest, but not bowed. We appear and approach the bench figuratively if not literally and we invoke five hundred years of legal precedent- PROVE IT!  And until the state does, by tradition, constitution and law, all must presume our client is innocent. And our document is a PLEA, because tradition calls it a pleading. Mr. Markus presumably wants to do away with pleas. Just say it. "Hey, not guilty, forgeeetaboutit." 

And what does Mr. Markus suggest about the "wherefore" clause?  Nobody else in society uses "wherefore" except lawyers. How should our pleadings end? "Having asked for the case to be dismissed, just do the right thing judge" ?

When we keep our traditions alive, including the use of antiquated language, we are reminding ourselves of our past. Where the great traditions of our profession have come from, and the words and phrases and actions that have given due process of law real meaning  to millions of people. It is comforting in times of trouble. It is a building that shows its architecture. It is a tree with deep roots. It is honoring all those who came before us. 

When we become a lawyer, by tradition we are called "counselors" because we counsel clients. It is an archaic term, but it brings respect to our profession and reminds us that our work is not just about producing fees. It is to give counsel. A tradition we are proud of and do not wish to relinquish. 

We can remove the old language, not stand when judges enter courtrooms, not say "may it please the court" when we start a trial, and for that matter put our shoes on the desks when waiting in court. We can bring our profession down into the ranks of a short order cook in a bowling alley. But why? We have a profession that has glorious traditions. The old, cranky law professor grilling a student on the first day of class- molding the clay into what will become fine lawyers. "Here's a dime Mr. Markus, go call your mother and tell her you will not be a lawyer." 

We under go such trial by fire because what emerges on the other side is steel, tempered by fire. We throw new PDs and ASAs into what we call "the pits" so that they will learn by trial and error. And what comes out after several months/years is a top-notch litigator. Trained in the ancient arts- and they are indeed ancient arts- of verbal combat and persuasion, they learn their craft studying the greats and learning from their mistakes. They learn that tradition matters. 

But not to Mr. Markus. When jurors find Rumpole's client not guilty, they sign a verdict form that ends with "so say we all", which is an archaic way of indicating that the verdict is  unanimous. Imagine the foreperson of the jury reading the form and seeing those words. It doesn't say "unanimous" which is what the jury instructions say. It reads "so say we all"- a solemn and traditional way of indicating that the verdict is the collective decision of all jurors. Mr. Markus would be satisfied with a form that says "didn't do it, yeah dog". 

We want our jurors to be solemn and understand the tradition of their service. We want our judges respected, wearing robes, on a bench, presiding above the melee of the pits. 

We want our community and our nation to respect our law and our courts. And one way is to show that our profession  just did not come about. Every judge, every lawyer, every pleading stands on the firm ground of history. This is our system since 1776 and it works, which is why we honor our traditions. Traditions that do not work- that insult us- like separate but equal- are tossed aside and we honor those who fought those battles.

 But when something works, we do ourselves no favors by tossing those traditions aside. Because at some point some narcissistic leader who idolizes dictators will say "Whyy do we have proof by reasonable doubt? All that does is let criminals go free. Who gave judges the power to tell us what to do anyway? This Judge is from Mexican descent and cannot be trusted." Etc. You know who we are talking about. 

Tradition is not just done for traditional reasons. It helps secure our rights. But young men and women who think they know everything do not understand that. It is when you are older than you see what young eyes cannot. Tradition matters. It help us and future generations understand where we came from, what we fought for, and why what we do matters. 

Wherefore, Rumpole submits that the use of "comes now" serves an important purpose in our profession. It lends a solemnity to a court pleading, the filing of which is an important and solemn act. Pleading Not Guilty is a solemn act. Those are archaic words, as is the phrase "comes now." In for a penny, in for a pound. Keep our traditions or throw them all out. These words Mr, Markus will cavalierly toss away are  part of our traditions that mean something,  and help protect everything.  

Res Ipsa Loquitor. 

Respectfully Submitted, 

H. Rumpole, Esq., Blog Proprietor. 

INNAUGURATION DAY

UPDATE: Clear your calendars tomorrow morning. Wake up a bit early and set the coffee maker the night before to automatic brew. It is Markus v. Rumpole, in a battle for the soul of the legal profession. One of us wants to do away with language like "Comes Now" and the other wants to protect all that is holy and good in the law. Each blogger will post precisely at 7 am. Check the other blog first, and after you stop shaking your head, head on over here for the real deal. 

 On March 4, 1861, the greatest President in our history- Abraham Lincoln was inaugurated.  This  inauspicious and self-taught genius was the greatest example of the man meeting the moment in our country's history. In our history we have been blessed with several exceptional people who personify the man(and woman) meeting the moment. George Washington, and his foresight in relinquishing power after two terms as president, and his command of the rag-tag army that set forth upon this earth our great nation.

Lincoln. Dwight D Eisenhower, a mid-level desk-general who never led troops in combat who was picked by General George Marshall and President Roosevelt over many more experienced and higher ranking  generals to lead the allied nations against tyranny. President Franklin Roosevelt, whose on-set of polio kept him out of the 1928 presidential race, which he arguably would have been the Democratic nominee and would not have won the general election which would have cast him aside as the nominee in 1932 which is when the man met the moments of the depression and then WWII. 

There is of course one glaring moment when the man did not meet the moment. When the world was struck with a pandemic and all eyes naturally turned  to the United States, whose President basically  told them to f-off, fend for themselves and withdrew our country from the World Health Organization. In this last instance, the president attacked our own national experts, shunned science, ridiculed the use of masks and turned the white house into a super-spreader location.  Tragically, the "man" did not meet the moment. A half a million Americans died as a result. 

So what does that mean for our Miami Court system? So far our Judges, led by Judge Soto have met the moment. They closed the courthouses a year ago and kept the court system running. And now our new chief judge has a decision to make- when to open up? On the plus side the virus numbers are dropping and the stories we hear are that many of our colleagues are now getting the vaccination. This should only get better. More shots- more protection, less transmission (MS=MP=LT Rumpole's formulae for beating a pandemic, (C) Rumpole, 2021, all rights and wrongs preserved). 

On the downside there are troubling variants popping up. It will take a steady and nuanced hand to guide us through these rocky waters. The feds have delayed reopening with trials until July. A smart move. Not only lawyers, but most court personnel, law enforcement, and jurors will have vaccines by then. State court judges want to start sooner. 

We have a new chief judge. Will the woman meet the moment? 

JURY TRIAL!!

UPDATE: VERDICT

We the jury this 2nd day of March, 2021, as to the charge of battery find Oscar Mondeja, NOT GUILTY so say we all. 

Congrats to assistant public defenders Kai Fiske and Dionne McDonald-Josephs who now have done something almost no other criminal defense attorney will ever be able to say they did- get a not guilty in a criminal trial in March 2021. Well done....well done indeed.  

(of course we predicted it). 

They picked six today at 1351 NW 12th Street, otherwise known as our battered and mostly empty Richard E Gerstein Justice Building.   175 NW 1st Ave, a/k/a the Lawson Courthouse, a/k/a family court and DV. 

State v. Oscar Mondeja M19-25767. Judge Eleane Sosa-Bruzon presiding. 

The charge? Battery most foul. 

Here is the You Tube Video. If anyone has the tik-tock- please send us the link. 

 

You can live-stream what is being called "the trial of the pandemic" on You Tube- did you know your Eleventh Judicial Circuit Of Florida has their own you-tube channel? 

It's the SAO vs. The PDs. The Veags line is Oscar -125 (he is favored to win- if you want to win 100 you have to lay a buck and quarter). 

Can you imagine the conversation the attorneys had yesterday? 

Q: Hey what are you doing tomorrow? Want to go to the beach? 

A: No I have a trial.

Come on. 

No, really, I have a jury trial. 

Fine, if you don't want to hang out just say so. No need to lie. 

The Docket:

135	03/02/2021		JURY PANEL SWORN
	134	03/02/2021		TRIAL HEARING SCHEDULED FOR 03/02/2021 AT 09:00 TRIAL HEARING RESET

MARKUS V RUMPOLE

 You do not want to miss this. 

Coming Friday the world's best legal blogger...and Mr. Markus square off on each of our respective blogs for a battle over the very heart of our legal practice- CUSTOM. He wins a few cases and appeals with the rare "reversed with instructions to discharge the defendant" and all of the sudden he knows everything. Or so he thinks. 

Query:  The use of "Comes Now" in pleadings, along with other customary sayings in documents are archaic and should no longer be used-  what say you all? Yea or nay? 

This is the topic that will be settled on Friday. It is nothing less than the battle for the soul of our profession. 

Kindly act accordingly. 

RUMPOLE'S RULES FOR COURT APPEARANCES

 From time to time we expound upon our wisdom, gained from years in the crucible. We are gratified, for example, that some notable trial judges have seized upon our rules for Judges  and adopted our rule that when a lawyer says she is going on vacation the judge does her no favors by setting the trial for the week she gets back. 

And now, just to show that we are even handed (certain Judges are spitting up their coffee at this moment) we present some common sense rules for lawyers when appearing in Court, via Zoom or in person. 

There really is only two rules that matter at all. It is the first rule (#1) , the last rule (#10), and together they encompass every other rule: 

RUMPOLE'S RULE #1: DO NOT BE LATE FOR COURT. A famous football coach had a rule that being early for an 8 am meeting was being in the room at 7:30; being on time was being in the room at 7:45 and being late was being in the room any time after 7:50 and no one should dare walk through the door at 8. The same goes for lawyers. You want to let a judge know you are professional and care about the client and the case? Show up early. Every hearing, every time. Everything else flows from that. 

RULE#2: Even in times of Zoom, men wear a jacket and tie and women wear whatever it is that they wear that is a respectful business suit. You are showing respect for the position and the dignity of the court. On Zoom you should never wear shorts and a jacket and tie. Wear a full suit, including shinned shoes. Personal preparation is a pre-condition to client preparation. 

RULE 3: Be prepared. Have the documents already out. Have your argument written down, no matter how simple. Don't read from it, but the simple five minutes preparation of writing "We are asking for a continuance because the state was late with discovery and we need more time" is a away of preparing. When was discovery served the judge may ask? Hold up the document you have already located with a time stamp. Fumbling through a file makes you look unprepared and no judge should tolerate that. 

RULE4: Always stand when addressing the Court, even when on zoom. It shows respect for the position of the Judge. Period. No discussion. 

RULE5: Always be respectful to opposing counsel. If they were late in discovery but sent it after you asked, make sure you tell the judge that. If you have a history with the lawyer, tell the judge that as well. "Discovery was late but I know counsel for the state and she is always diligent about her responsibilities ..." 

RULE6: Always address Court personnel and be respectful and tell the Judge how the clerk or court reporter helped you find something just before court started. Always thank corrections officers for helping with your client. 

RULE7: Spend time with your client before and after every hearing. Let them know what to expect and afterwards what occurred. Follow that up with an email. Most lawyers get in trouble with the Bar for not keeping the client informed. Email ends that problem pure and simple. 

RULE8: Never never never never surrender. As Mr. Markus says, "You cannot win a plea." 

RULE9: See rules 1, 8 & 10. They are  that important.  

RULE10: Never be anything other than 100% candid with the Court. It takes a lifetime to build a reputation and one moment to lose it. Do prevaricate, equivocate, or any other "ocate". Just tell the truth and if you cannot do so- tell the Court you cannot answer the question. One lie...one exaggeration, one miscommunication is all it takes to lose a judge, lose a case, and lose your reputation. 

Corollary: Judge's often have a short amount of time to grasp what are many times complicated sets of facts. A difficult job for the brightest amongst us (add the gratuitous shot at the bench here)...  So it stands to reason that some Judges who can't get all the facts down may well feel themselves drawn to the advocate that appears more levelheaded and more reasonable. No Judge gets intimidated by a lawyer who yells and engages in histrionics. In fact such actions are more likely to get them to stop listening to you. 

If you want to be a better lawyer and lay the foundations for success, start with our rules. 

TAKE THE JnJ JAB

 In preparation for our ground breaking, earth-shaking, robe-wearer-quaking post on Monday, we use this Sunday to clear up some loose ends. 

First, Diamond Joel Hirschorn, ever the class act, wrote to us privately that the real story behind the discovery that the trial court neglected to read the reasonable doubt instruction was a little less dramatic than our post, which took some literary-license with the scenes of discovery, not to mention the 3rd DCA deliberations (and perhaps it is time to give kudos to the panel- CJ Kevin Emas,  and neewbies and former prosecutors Flor Lobreee and Monica Gordo.  We expected no less from Judges Lobree and Gordo  as former prosecutors. In their time at the SAO  they were known as reasonable and fair and it was nice to see them in the majority here.  BTW- if you like reading 3rd DCA opinions, keep an eye on Judge Gordo- some of her dissents have been superb and she is making a reputation for herself as an original thinker. It is gratifying to see. 

In his email to us, Diamond Joel gave all credit on the briefs to his co-counsel Mr. Sarangoulis, and had some mild criticism for the State not admitting error. We find the last part troubling. A man is serving life in prison, and the fundamental basis upon which our entire criminal justice system rests- a jury considering whether the prosecution proved their case beyond a reasonable doubt- was not in play during the trial. And despite that, the State - with their unsettling blood lust, sought to keep Mr. Phelps in prison until he died. The Florida Bar should be investigating whether these state bureaucrats should be held accountable for their lack of prosecutorial professionalism, the first requirement being sworn to ensure that the laws of the State are followed and executed. On this point, they failed miserably. Not for the fact that the RD instruction was not read, but for not immediately agreeing that a new trial was in order. 

Second, many people are emailing us asking if they should take the Johnson and Johnson vaccine or wait for the Pfizer/Moderna jab. The answer is an unequivocal YES.  The main reason is this- ignoring all of the other numbers for a moment, the JnJ vaccine is 100% effective in stopping hospitalizations and death for Covid19. That means that no one- zero, nada, was hospitalized or died after getting the JnJ vaccine, even if they got Covid. That means everything. 

Now lets take a deeper dive into the numbers. First praise for Pfizer. Not only are the P=jabs 95% effective against Covid19, but those numbers have been confirmed in real life field testing in Israel in which, reviewing over 250,000 people who got both P-Jabs in the last few months, the vaccine approached 98% efficacy. These numbers are more recent than the P-jab studies conducted 8-10 months ago, in the US, Europe, Africa and South America when there were less and less serious variants. So the Pfizer vaccine works and is working now. 

The JnJ jab was tested more widely and more recently  than the Moderna shot, which was only tested in the US, and also was tested at a time when there were less and less serious variants. Preliminary data shows that the Moderna vaccine is very effective against the deadly South African variant. which is good. But the final thing to remember is that with all three vaccines you are comparing Broward Judges to Miami Judges- there is no comparison. One set of the Judiciary will take lawyers who are from another county out of turn and another won't. You figure it out. 

If offered the JnJ jab, just keep telling yourself this- a month after I get this vaccine, I have zero chance of dying from Covid. Period. End of story. Roll up your sleeve, grit your teeth, get a lollipop and leave with your life protected. 

It is fair to say we are at a tipping point in our battle for Covid- but there is no doubt how it will end. We will prevail- we can make boosters and new vaccines that will shut this sucker down and a year from now, someone dying from Covid will be a rare and isolated event. 

WE CLOSE WITH THIS:

What would have happened if Covid came in 1977, or 1987, or even 1997? Would the Justice system have survived? In 1977 or 1987 most people didn't have cell phones (remember beepers?). In 1987 laptop computers were a rarity, there were no Ipads, and we accessed the internet with a  dial-up modem. Even in 1997, internet access and speeds were such that we could not have streamed Zoom hearings. And there was no e-filing at the time. So what would have happened? The clerk's office would have to had a person on the front steps, wearing a mask that they could not buy from Amazon, taking filings. We cannot even imagine the lines at Eckards (remember them?)  to buy a box of masks. 

Court hearings to process new arrests would have to take place in Lot26. Regular calendars would have to be held across the street under tents, or in the Orange Bowl. Even the dissemination of information about what was happening would have been near impossible. The Herald (gasp!) would have played a crucial role in telling people where to go and when. 

This could have been worse. We did not have the mRNA technology that the Pfizer and Moderna vaccines use. The JnJ weakened adenovirus would have been the first jab created and without computer monitoring and reporting of events, it would have taken a year to collect, collate and analyze the data.  And in any of those decades, 9 out of 10 vaccines routinely failed. So let us take a moment and count our blessings. We are well on our way to being back, to having Rumpole prowling the bars of jury boxes, growling out objections, crushing lying state witnesses with a withering glare, and arguing the reasonable doubt instruction-whether the judge deigns to give it or not. 

Stay safe. 

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Coming Monday: The Blog post no Judge ever thought Rumpole would write. 

WOOPS

 Good lawyers do their job and try hard. Great lawyers assume nothing, challenge everything and leave no stone unturned. 

Joel Hirschorn is a great lawyer, truly deserving of his legendary status as "Diamond Joel", which he was known as around the REGJB in the drug trafficking heydays for his diamond tie tack. While we do not know him, Andrew Sarangoulis, who was lead counsel with Mr. Hirschorn on a case that resulted in the 3rd DCA vacating a first degree murder conviction, deserves kudos for great work. 

Let's take a deeper dive. 

In 2014 Joseph Phelps was convicted of first degree murder. He conviction was affirmed on appeal. Enter Mssrs. Hirschorn and Sarangoulis on a 3.850 habeas petition. Talk about a long shot. So what did the defense team do? They started at the beginning. They assumed nothing, and reviewed everything. And lo and behold what did they find? 

Ummmm that the trial court "forgot" to give the reasonable doubt instruction!!! Wait- was this trial in Broward? Nope. It was here in Miami. And not only did the trial court forget to give the reasonable doubt instruction, the error was missed by the prosecution, the defense, and the defense on appeal. 

Woops, double woops, and triple woops. 

Just how did closings go? "The court will instruct you in reasonable doubt" - every attorney who has walked though the door of 1351 NW 12th street has told a jury in voir dire, opening and closing arguments. 

Did they fumble through their jury instructions packet? Or did the learned trial judge just miss it because of the pressures our poor, underpaid robed readers are under? 

The real story here is the lawyering at the habeas stage. It is realistically the client's last shot. Lawyers need to roll up their sleeves, start with the a-form and end with the verdict form and not overlook anything, including the boring jury instructions. Imagine the aha moment here when the defense team, surely late at night, a lone lamp burning in dark offices at Gray Robinson, sips a lukewarm cup of coffee and sighs and turns to the jury instructions of the transcript. "Thank you all for your attention. I will now read to you the jury instructions in this case. ....for over 200 years we have all agreed to abide by a set of laws. There are no other laws in this case."

"Ok, tomorrow I'll re-read the appellate briefs....hey...wait a second... did the judge read reasonable doubt? Of course s/he did. But...let me just check...introduction to homicide...definition of first degree murder...when there are lesser included counts...second degree murder....the first thing you should do when you enter the jury room is elect a foreperson. Either a man or woman can be the foreperson of the jury....NO REASONABLE DOUBT??? This cannot be. Let me do this again.... (papers now being frantically scattered across an already messy desk as the transcript is reviewed)NO REASONABLE DOUBT INSTRUCTION??!!  Surely this was raised on appeal....where are those appellate briefs....hmm...it was not raised on appeal???" 

A phone rings late at night. One of the lawyers is calling the other "You're not going to believe this, but on the Phelps case, I think I found something..."

The scene now shifts to the 3rd DCA in a small conference room: "We can't PCA this can we?"

"Of course not. There is precedent..." (nervous laughter in the room). 

"I mean, it has to be reversed right? Have we done that yet this year?"

"No...but still, we usually do one or two a year."

"Still, a PCA would stop any further appeals."

"It's reasonable doubt for gosh-sakes. It's not like the lawyer was sleeping during the trial. That's been affirmed before. But this....I mean who forgets to read reasonable doubt??"

CJ: (sigh) "Ok, all in favor of a reversal say 'aye'. 

CJ: "allrighty then. I'm the CJ, I'll write the opinion." 

Ladies and Gentlemen, may we present to you the winners of the 2021 FACDL MIAMI CHAPTER (dues due now) AGAINST ALL ODDS AWARD- Diamond Joel Hirschorn and Andrew Sarangoulis. (cue Rocky Theme Music as lawyers all rise at home (the awards ceremonywill be on Zoom again this year) and give these lawyers the standing ovation they deserve.

The opinion is here.  

Phelps Decision by HR on Scribd

 

Coming this weekend- the most unusual Rumpole post ever.

THE BEGINNING OF THE END OF COVID 19 AND MORE

 We are truly at a tipping point in our Covid 19 battle. The Virus is on the ropes, like a prosecutor whose witness has admitted that maybe she didn't see exactly who robbed the bank, but the detective said they had arrested the person who did it and maybe she could just confirm that by seeing him in handcuffs. 

Vaccines and masks are causing significant drops in new infections. Like a prosecutor from the Southern District of New York hiding exculpatory evidence and then lying about it, the virus is desperate- mutating to more virulent and deadly forms. But like Rumpole rising for one last cross examination to deliver the coup' de grace, bio-tech companies are developing new boosters that will protect against the new variants. In this race, we will win. We will outthink this virus with our technology until the virus has no where to go and dies an ungraceful death. Be patient. It is more than "the end of the beginning" as Winston Spencer Churchill said about the British's victory at the second battle of El Alamein (Rommel was heavily favoured, but it turns out he was nowhere near Egypt when General Sir Bernard Law Montgomery's forces routed the German Afrika Corps consisting of the 15th and 20th Panzer divisions and the 90th light Afrika division.). It is indeed the beginning of the end, so keep the faith and keep your mask on. 

The DOM publicity machine rolls on. Millions of NYC straphangers yesterday plopped down on their seat on the BMT or IRT and folded over their Daily News to this OpEd by "the spokesperson for the Ghislaine Maxwell family" in which our Mr. Markus notes that Ms. Maxwell has been kept in horrific pre-trial isolation that represents significant psychological and physical punishment on a woman convicted of nothing. Ms. Maxwell is going back to court with what Mr. Markus calls "one of the most comprehensive bail packages ever offered in a US Court." 

Talk about being ahead of the curve! Why spend thousands of hours preparing for trial when you can be a "spokesperson"?  Genius. Our federal blogger is exploring new fields of opportunities for our profession. Imagine a person hiring a lawyer for a DUI- "I will be your attorney in Court and the fee will be $7,500.00. We also recommend you hire the DUI Spokesperson Defense Team as your spokesperson. It's the newest thing in criminal defense." 

Or how about this on TV: "Have you been injured in a car accident? Has a doctor operated on the wrong foot? Have you already hired a lawyer for your lawsuit? Then call us NOW at 1-800-speak-4-u and we will be your spokesperson." 

Of course the slightly small problem in the Maxwell matter is that, in our humble opinion, the best in-court  lawyer for Ms. Maxwell is currently the spokesperson for her family. It's like going to Dr. DeBakey for heart surgery and finding out all he is doing is putting in the IV. It's like being Tiger Woods and renting a car but not hiring a driver. 

Speaking of which, the NY Post, notorious for their bad pun headlines had this the other day: "Tiger's Worst Drive Ever". Not as cringe worthy as the infamous "Headless man found in topless bar" headline, but still in poor taste. 

And finally, this comment from the Yahweh Ben Yahweh post the other day deserves  the front page: 

 Anonymous said...

The truly amazing Yahweh trial was the first one with 17 defendants in Federal court in Fort Lauderdale before Rotteger. I represented one of the defendants. It was a five month trial. I had to pass on an all expense paid two week business trip with my best client to Kauai. She was invited to record with Taj Mahal at his Hawaiian studio . That was a tough choice. But the truth is, I made the right one. The trial was as entertaining as it gets with many, many memorable moments I relive often. Didn't hurt that my client was acquitted on all counts. The defense was so strong that the state declined to charge him in state court. You all should have been there to see a truly spell binding three hour closing argument by Alcee Hastings. We all broke for lunch in the middle of his closing and 16 attorneys gave him a standing ovation when he walked into the local restaurant. Those were the days my friend!

Wednesday, February 24, 2021 10:30:00 PM

 

Indeed they were the days. Who was the spokesperson for the defense? 

COMMING FRIDAY : Diamond Joel Hirschorn and the amazing win at the 3rd DCA this week. 

YAHWEH BEN YAHWEH

 In the Rumpole abode, on Saturday nights we open a nice bottle of wine, finish off the Pasta Amatriciana-made only with guanciale (cured pig jowls) naturally, open the ice cream machine to see what we have made, and gather-round the Ipad for our favourite Podcast- For the Defense, by Mr. Markus, available where ever quality podcasts are disseminated (Apple, Spotify, Starbucks, et.al). 

And in the latest episode Mr. Markus sheds the rarified confines of federal court, where his interviewees wax poetic about the changes in the admissibility of scientific evidence from Frye to Daubert, and drill deep in the committee notes on Federal Rule of Evidence 404. Instead Mr. Markus heads to the intersection of 12th street and 12th avenues, finds some parking and enters the real  criminal courthouse where real trials have been taking place since it opened its doors circa 1960. None of this nonsense where agents sit at counsel table. The cops wait in the hallways like everyone else, until called to face the crucible of cross examination like only Rumpole can deliver it.  

It's a 305 Miami murder case that started in the 1980's with a Miami religious sect and ended with an acquittal in 1992 with famed Miami Criminal Defense Attorney Jane Weintraub defending the lead defendant Yahweh Ben Yahweh. The State-led by ASA Trudi Novicki was seeking the death penalty  Many defendants were on trial.  Some having been acquitted in federal court several months earlier were acquitted again and released. Robert Rozier, a former NFL football player was the flip who testified for the state. Rozier testified to several murders committed on the orders of Yahweh Ben Yahweh. "This case starts and ends with Rozier" REJBG legend Rayfield McGhee, who successfully defended another member of the sect on trial, told the jury in closing argument. 

It took three hours for the REGJB jury to say those sweet two words Rumpole hears many times a year: Not Guilty. 

So, gather the family around the Ipad and hook up some blue tooth speakers and be prepared to be entertained and transported to a time when we tried big murder cases, and we won them.   Mr. Markus interviews Ms. Weintraub, and its a great podcast. And don't forget to download the other episodes with interviews of Roy Black and other great criminal defense attorneys like Tom Mesereau who successfully defended Michael Jackson. In the crowded world of podcasts, this series stands out, especially in our profession. And NO, there are no plans as of now for the biggest "get" for the Podcast- your humble blogger. If the medium is the message, ours is electronic print. 

JURY TRIALS

BREAKING: Tiger Woods injured in one car accident in LA. We watched the news conference. Do the stupid questions reporters ask annoy you as much as us? Just once I'd like to see a sarcastic answer: 

Q: Was any special treatment given to Tiger Woods because he is a celebrity?

A: Yes. Of course. A second and newer ambulance was sent once we were alerted who was injured. The head of orthopedics was called to the hospital to handle the surgery instead of the on-call resident. We have a celebrity-injury check-list that we go through once we realize a celebrity is injured. For example Mr. Woods was offered to have the ambulance stop for a cafe latte once it was determined he was stable. Also a cleaner ER than the standard one was used.  

What if we never get back to normal? What if Covid19 lingers and there is a Covid21 and we cannot safely bring jurors into courthouses on a large scale basis? (There goes our chief Judge reaching for her Maalox again because of us. Sorry). 

Lets just say we cannot get back to normal. What do we do? 

We have some thoughts, naturally. 

First: Reexamine our criminal code and prosecution practices and judicial sentencing philosophy. First and foremost the "trial tax" (cue ominous music). Let's start with County Court and misdemeanors. County Judges, you are relevant. Look in the mirror, rinse, repeat. But when the defendant asks for a trial by jury for a first DUI and loses, they DO NOT need to be sentenced to jail. Not when all plea offers for first DUIs are non-jail offers. Ditto for the battery charge, the resisting arrest without violence charge and the Snook out of season charge. People do not need to go to jail for misdemeanors. Period. 

Now Circuit Court and felonies. Take the last sentence and substitute "drug possession" for misdemeanors. People do not need to go to prison for drug possession cases. Or any third degree felony for that matter, That is the low hanging fruit. Now buckle up, because it is going to get rough. 

What do we do with the serious, violent felonies? 

Professional jurors and/or panels of five judges who recommend a sentence along with the verdict. Walk through the REJG any afternoon between 2000-2019 and you will see empty courtrooms and chambers. These judges need something to do! And now we have it- they can be jurors! It will still take six to convict- five jurors,  including retired judges and retired lawyers, and the sitting judge must unanimously agree to convict the defendant. The five jurors in the jury box will then recommend a sentence, no complex guideline calculations needed. "Yes, the defendant is technically guilty of burglary of an occupied structure with an assault. But when the defendant broke into her own home that her husband locked her out of and threw a box of graham crackers at him, the sentence should be a withhold and one year probation."  

We need to start moving cases. Professional jurors can handle more evidence quicker and can come to common sense verdicts and sentences. And how about this? No voir dire! You get three potential panels of Judges. One panel is picked by the blind clerk.  The State can then strike that panel and the second panel is picked by the sight-impaired clerk. The defense then has the final say of panel two or panel three. Takes ten minutes, swear them in and lets start with openings! 

Now just stop before you complain that the world will be deprived of your brilliant voir dire, something that Mr. Markus will tell you  that we do not have in federal court anyway. And let's be honest, most lawyers stink at voir dire. They get so befuddled about reasonable doubt that they start drowning in hypotheticals until the trial judge rescues them. A more ignominious fate we cannot imagine.

Lawyer: Ok, imagine the sun is shining, and you walk outside and see your car is wet. Is it reasonable doubt to assume a rainstorm fell on just your car or someone came by with a hose?

Juror #1 (raises hand): I don't have a car. 

Juror#2 (chimes in): There are no hoses in the jury parking lot. (Other jurors laugh). 

Lawyer: Ok, it's snowing out, right, and you see snow on your driveway and....

Juror #3(raises hand): It hasn't snowed in Miami since 1974. 

Change is the price of survival. We need to change and adapt. We have to move cases through the maw of the justice system conveyor belt. We need to stop slamming defendants who cannot hire Rumpole for trial and lose, and we need to stream-line the process of trials and make sentences reasonable.  

And while we are on our soap-box,  let us finish with this. There is no such thing as deterrence. Period. Deterrence is a big deal in federal court under the 3553 factors. We have spent a life time practicing criminal law and not once has a client sat down and said "I had an opportunity to do some mortgage fraud and I was reading the federal law weekly and saw that Judge so and so gave someone three years for mortgage fraud with a loss of under a million and it was affirmed by the 11th circuit so  I figured I could risk that. If the sentence had been five years  I would not have lied on my mortgage application."

Lawyers, who do not read appellate decisions, commit crimes. So how do we think that some 17 year old kid who grabs a purse or steals an ID and buys an Xbox11 on the web knows the consequences of a crime? Miami is the capitol of medical fraud and has been for 20 years. Doctors have gotten 30 year prison sentences. And more doctors come along and write fake scripts in fake accident cases. The prior sentences on other doctors had no affect on them.  So stop with the deterrence crap. It's meaningless. 

There. 

We said it. 

Blue Monday

 Rainy days and Mondays always get us down. 

It's another edition of Rumpole's "WE'RE DOOMED"! ( (c) Rumpole's Blog, 2021, all rights and wrongs reserved). 

First the good news. Covid numbers across the board and the nation are falling. We are wearing masks. We are getting inoculations. We are social distancing, and guess what? It works! The science words. Who would-a-thunk-it?  The downside to this is that we passed a half a million deaths from Covid19 on Sunday. More Americans died in less than a year fro Covid19 than the combined deaths in WWII and Vietnam. Good thing we had a smart and motivated president from the start of the pandemic or it could have been worse.  

Our President has secured 600 million doses of the Pfizer and Moderna vaccines combined. Yes POTUS 46, not 45 did that. And those will be fully available by July which means they should be in the arms of every American who wants one by August. And this does NOT include the Johnson and Johnson vaccine coming on line shortly. JnJ has said it will have 500 million doses ready before the end of the summer as well. America will lead the world in vaccines and distributing vaccines to those countries who need it. A far cry from the xenophobic "America First" nonsense of the last few years. When Americans arrive in far flung lands and vaccinate needy populations, the goodwill that buys is inestimable. As our current president said to the leaders of the NATO countries this past week: "We're back!".

Now, the sobering news why none of this may matter. 

It turns out that the reason for the Neanderthals' disappearance from earth was something called a "polar-switch." About 42,000 years ago (or roughly as long as it takes to get a file from the 9th floor attorneys' room in the REGJB) the magnetic fields at the north and south pole switched. As the magnetic fields switched, the part of the atmosphere that protects us from solar radiation disappeared. There was dramatic climate change, which the Neanderthal Republican Party at the time  (Motto: Eurasia first!) called "fake news and science" (you don't think the current Neanderthal Republicans  had the imagination to come up with that on their own, do you?). 

Well unfortunately for the Neanderthals, (Republican ones and otherwise), the climate change news was not fake and the solar radiation killed them all. The CNN article is here.

Now here is the worse news: The polar magnetic fields may be fixin to switch again. In the current issue of the journal Science, there is an article detailing the current weakening of the Earth's magnetic field by 9% in the last 170 years and there is "rapid movement" of the northern magnetic field across the northern hemisphere. 

A magnetic field switch would be bad. How bad? Like worse than having to pick a jury in Broward bad. 

In other words...

TEXAS 2021

 Howdy, y'all. Let us take a look at our neighbor to the west, the Lone Star State. Rugged individualist who exemplify the American "go-it-alone" spirit. The place where all is well because Texans can wear their sidearms in Church and Kindergarten and the Piggly-Wiggly, as is guaranteed in the first forty-four amendments to the Constitution and and in the Bible: "Go forth and wear guns where you worship Jesus, where your children learn, and where you reap food (with 2 for 1 coupons on Tuesdays)" Luke: 23:5-7.  

The temperature fell a few degrees and folks we are here to tell ya that Texas fell apart. "Ohhh I'm cold, where is the federal government bringing help?"  Well Texans, you do not want to pay taxes. You chant "de-fund FEMA" and you support state's rights. So when your state is in trouble, just solve it, right? Three quarters of the country was in a deep freeze and and only you Texans were heard to whine. What? You don't have a winter coat and a hot cup-o-joe? Pluhleeze. What a bunch-a-wussies. The weather falls below zero in Vermont in August and doesn't get above zero until the end of July and they handle it with Yankee ingenuity just fine. Canada, those liberal gun-hating babies, is frozen year round, with nary a whimper. Texans have shotguns. Texans hunt. But they don't have one of those red checkered jackets for a cold snap?  

Let's look at what Texas did right.      

No. Seriously. 

El Paso. El Paso Did not lose power. Stores were open for food and fuel and water. Why? Because in 2011 after El Paso was hit with the type of freeze that crippled the rest of Texas in 2021, El Paso, those liberal commie bastards, did something unusual.  They didn't pray, they fixed their problem. They insulated their existing power stations. They built a power station that could switch in minutes from natural gas to fuel so that if natural gas pipelines froze, their fuel in supply tanks could be used. They raised taxes and utility rates for a few years and modernized. 

And Ted Cruz. Really. Senator Cruz is apparently one of the only smart people in Texas, as befitting his liberal, north-eastern law degree from Harvahard, Cruz did the smart thing. He looked around and said "feet don't fail me now" and he took his family to Mexico (the wall he supported the former president building only keeps Mexicans OUT. It lets Americans in. Duh.). Cabo San Lucas, specifically. Why sit in a house with no power and 20 degree weather when there is a Four Seasons with 80 degree weather just waiting for you in Cabo? 

Do not blame the rest of  Texas that they are too stupid to get out of the cold. Celebrate that they have a senator who is smart enough to listen to the weather girl on WTEX. Just what did outraged Texans think Senator Cruz was going to be able to do if he stayed home? Mosey over to the Dallas power station and lean over Rex and Bubba who are under the generator in their oil stained overalls.  Ted Cabo: "Looks like you boys have your hands full."  Rex: "Uh, yeah. Can you hand me that wrench?" 

When the going gets tough, the smart go to the Four Seasons. That has always been our motto. If you are not industrious enough to make enough money to afford to fly your family to Cabo and the Four Seasons, whose fault is that? Obama's obviously. But until then, let's celebrate what Texas did right:  El Paso and one wickedly smart Senator. 

Meanwhile for those of you in Texas who read this blog, it was 80 degrees here in Miami all week. Just sayin. 

PERSEVERANCE

 On Thursday the Mars Rover Perseverance landed on Mars. 

 We live tweeted the last minutes of the landing @justicebuilding. You should check it out. This is a big deal. Our exploration of Mars is going to lead to humans landing on Mars, which is going to lead to colonization of Mars. 

"2BR Capsule, Mawrth Vallis,  in the Neil Armstrong development, Recently redone with new water reclamation and next-gen O2. Buy for 690 or rent at 3950 per Mars/month, food resupply pod every six months included" 

As the planet heats up, people call global warming a hoax. When the planet got sick with Covid, people attacked social distancing and masks. When the FACDL listserv self-immolated this week, after the dust settled and all the lawyers finished attacking each other, they did next what comes natural- they attacked US! 

*"Rumpole posts all our emails!"; "Yeah, none of this would have happened if Rumpole didn't run the blog"; "Get him!" someone shouted. 'Hang him!" someone else screamed. That guy who stormed the Capitol wearing fur and Vikings horns chimed in, looking for a large flag pole to swing at us. 

It was a blood bath. We were pummeled. and no one came to our defense. It is like we were the Americans in our favourite Gordon Sinclair recording. 

The attack was the height of calumny. Here we were minding our own business, writing a motion to dismiss, when our email in-box started receiving emails with captions like "You cannot believe what these idiots are saying about you!" 

It was Outrageous. Salacious. Faceless. Shameless. And not in the least, Mendacious. If we could find more adjectives that rhyme, we would keep going. 

Lost in all the attacks we endured was the original problem. Apparently David Ovalle of the Miami Herald sniffed out our post on the PVH/Covid controversy. Some lawyers spoke to the intrepid Herald scribe and gave him some FACDL emails which he put in the story. Now mind you, we posted ONE email after our Capitan spoke with the author and received permission to do so. No good deed goes unpunished. The furor rose. One member called for others to resign. Aspersions were cast. Invectives were hurled. Unfounded accusations that would make a Broward Prosecutor smile were made. 

And when the dust settled and everyone was licking their self-infected wounds and there was no one else to attack, someone had the bright idea to blame your humble blogger. It was like lighting a flame to a can of gasoline in Texas so you can melt the ice in your bathtub to flush your toilet while your senator is in Cabo. In other words...WHOOSH! The mob turned, and in moments we were electronically tarred and feathered. "He posts every email we send" they whined. "Been doin it for years" someone grumbled. "Has no respect for us" someone else chimed in. 

In other words, in that famous poem by the German Lutheran pastor Martin Niemoller decrying the rise of Nazis "First they came for..." , the prediction of the poem came true: "Then they came for me."

 It was not pretty. 

We are still being trashed. (sniffle 😥). 

WE'RE GOING REMOTE

UODATE The calumnious attacks on the Blog and us on the FACDL listserv continue unabated. Will no one stand up for us? We have not for years posted emails from the listserv unless, like yesterday, the writer gives us permission. We will not take these untrue assaults on our character and integrity  quietly much longer. 

UPDATE- 3:46 PM We are live tweeting the Mars landing of Perseverance. @Justicebuilding. Stop trashing each other on the Listserv and watch the landing and follow our tweets. 

UPDATE: If you are a member of the FACDL, and have a few minutes and need a laugh, read your emails about our last post. They are too funny- except for the baseless attacks on us and El Capitan. That is the point they have stepped over the line. Those attacks should stop lest we seek legal counsel. You know who you are. Kindly act accordingly.  

The CJ of the Florida Supreme Court issued an administrative order and then a memorandum on how judges should institute remote jury trials. We suggest  skipping the 27 page order and reading the 2 page memo.  The variant has thrown the judiciary a curve ball. In December and January we all had visions of being inoculated in February and picking juries in March.  We are close, but we are not there yet. Most Americans may not be jabbed with a vaccine until August and that is a bridge too far. 

So we give credit to CJ Canady for adapting to the shifting landscape. And, surprisingly, we support the move. 

Now before you get on your soap box and start pontificating about the small micro-gestures you expertly pick up on in trial which allows to you pick the best jurors and break the unbreakable witness with a withering cross all fueled by that slight tick you picked up on, let us say ...balderdash!  You didn't win that case you're always bragging about because the eyewitness blinked at the right moment. And more importantly, a good trial lawyer adapts. Good trial lawyers try cases under all sorts of difficult situations. They go to foreign jurisdictions where cross examination is conducted while seated. Or where they are not permitted to move from behind a podium. Or- like most of the country and all of federal court- where depositions are not allowed. And yet, they prevail. Like the US Marines, they Improvise, Adapt and Overcome. 

Both sides have the same limitations in remote jury trials. When a judge hands you a lemon, make lemonade. What you may lose from not being in the same room with jurors and witnesses, you may gain in other ways. It is up to you as a good lawyer to find those ways to make the disadvantages into advantages. Appellate oral arguments are conducted viz zoom, and things are different. There are less questions. Panels let lawyers talk longer before interrupting. Good appellate lawyers are still winning cases. They find a way. 

Change is the price of survival. The world has changed. Courts have changed. The Law has changed. And now the way we try cases has changed. Deal with it. Go to trial and get those not guilty verdicts that are just waiting there for you to take off the table and hang on your wall. 

Improvise.

Adapt. 

Overcome. 

Win. 

2021-02-17 Memo Re Requirements for Remote Criminal Jury Trials by HR on Scribd

AOSC20 23 Amendment 9 by HR on Scribd

COVID-19 ADVISORY #742,312 -

Rumpole Update: This is a comment that we received that sort of levels the playing field. Things are not always what they seem. 

Paul's e-mail is a little misleading. The judge chose to move forward with a Zoom PVH under the authority of the recent decision by the Third in the Clarington case. Mr. Cariglio objected and said that he and his client had a right to be present in the courtroom (he later also requested that the ASA be required to be present in the courtroom). After that objection and request by Mr. Cariglio, the judge ordered corrections to bring the defendant and for Mr. Cariglio to appear. Mr. Cariglio said it was not ideal but he would be willing to appear in person and also stated that he had been dining out at restaurants during the pandemic The hearing was reset so everything could be arranged. All this to say, its not giving the full picture to claim that the judge decided to conduct an in person hearing over Mr. Cariglio's objection. The judge ordered a Zoom PVH and Mr. Cariglio demanded he and his client be allowed to appear in person. None of this, however, negates the fact that the judiciary should closely examine the decision whether to conduct trials under the circumstances. 

THE CAPTAIN REPORTS:

COVID-19 ADVISORY #742,312

Regular readers of the BLOG know that we have been posting in the Comments section every time we receive one of these "advisories" from Eunice Sigler, the Communications Director for the 11th Judicial Circuit.

Today, we were alerted to some very disturbing information shared on the FACDL List Serv by Paul Petruzzi. We asked Paul for permission to re-print the information and he encouraged us to do so. Here is what Paul wrote in its entirety:

So, many of you know I share space with Jerry Cariglio. Our office also has staff and a lawyer with health conditions that place them at greater risk for serious complications were they to contract Covid. As an office, we have all been very careful to avoid exposing ourselves and then the rest of the office. Over Jerry’s objection, Judge Fernandez decided to conduct a PVH in person rather than waiting for things to become more safe. The hearing started yesterday and was to resume today. It won’t resume today because the bailiff tested positive for Covid. In the meantime, Jerry had very close contact with the bailiff for several hours yesterday and now has had contact with half the people in our office suite. I encourage the judicial powers that be in state court to rethink their current plans. Paul P.

Needless to say, the feedback on the List Serv was swift and directly to the point.  Judge Soto and Judge Sayfie need to take a long hard look at the decision to resume jury trials on March 1, 2021.  There must be an absolute standing Order signed by Chief Judge Soto that directs all Circuit and County Court Judges to permit the attorney of record to be granted a continuance if they do not feel comfortable appearing for trial in person.

This is a matter of "life and death".

CAPTAIN OUT .......

Captain4Justice@gmail.com

CONVERGENT EVOLUTION

British researchers now believe that the new British strain B1.1.7, which Dr. Fauci has already said many times will be the dominant strain in the United States next month, is not only more virulent but most likely more lethal. 

But something a little more concerning is also happening, and along the way it is further proof of Charles Darwin's Theory Of Evolution. For all you Religious-Fundamentalist-Republicans who do not believe Adam descended from Bonzo the Chimp, Covid is dealing you some serious disappointments. 

Convergent Evolution is the similar evolution of new traits in not closely related organisms. In other words non-related species can evolve similar traits based on their environment. The phenomenon has been observed in viruses and now there is evidence that strains of Covid19 in the United States are showing traits of the strains of the British and South African variants. Holy Evolution Batman! This is not good. What this means is our enemy is independently adapting throughout the world. Strains continents apart are separately and independently mutating to a new strain with similar characteristics- becoming easier to catch (because by wearing masks we have made it harder to spread) and more deadly. Covid is a worthy enemy- like a prosecutor with a confession and DNA. But as any prosecutor who has dealt with Rumpole can tell you, Covid can be beat.   

The NY Times article is here. 

The reasons for an elevated death rate are not entirely clear. Some evidence suggests that people infected with the variant may have higher viral loads, a feature that could not only make the virus more contagious but also potentially undermine the effectiveness of certain treatments...

(Note to Judges- as Bruce Springsteen sings in 10th Avenue Freeze Out "This here is the important part"*):

No matter the explanation, scientific advisers to the British government said on Saturday, the new findings laid bare the dangers of countries easing restrictions as the variant takes hold.

The overall picture is one of something like a 40 to 60 percent increase in hospitalization risk, and risk of death,” Neil Ferguson, an epidemiologist and scientific adviser to the British government, said in an interview on Saturday. Referring to the tight restrictions on socializing that are in effect across Britain, he said, “It reinforces the policy measures in place.

The CDC announced Sunday that two million Americans had been vaccinated the day before.  We are close to vaccines being available  for those of us who labour in the REGJB for our bread and wine, although it is not yet on the menu of Au Bon Pain. March 1, 2021, is NOT the time to open up the Courthouse and start trials again.  But like opening day in baseball, Memorial Day or the 4th of July or Labour Day or Thanksgiving, it is coming. Just wait a little longer please.

* Bruce  only sings that line occasionally in live shows.  It was not part of the original lyrics. 

ATTORNEY AL WILLIAMS HAS PASSED AWAY

 Al Williams, a long time fixture at the PDs office where he handled the most serious cases and mentored generations of young lawyers has died at the age of 70. Mr. Williams life is a Miami Story gone good. 

He was the second of six children born in a house on Williams Avenue in Coconut Grove. He attended George Carver Highschool and Coral Gables Highschool, a three year letterman in football and wrestling. His football team went undefeated one year, winning state and national titles and named the Florida Highschool football team of the Century, no small honor in this state. Al was an undersized 160 pound guard on the team. 

Al Williams graduated from UM Law school in 1976, joined the PDs office and spent the next 35 years defending the people of his home town. 

We did not cross paths with Al Williams much, but he was a much admired member of the Dade PDs office and started at the time when assistant PDs were named Roy Black, HT Smith, Jack Denaro, and Norm Gerstein to name a few. It was an office of current and future super-stars.