Thursday, July 31, 2014


... Because life is too short 

not to travel

to drink bad wine

to not follow your dreams

to eat bad food

to associate with bad people

to represent pain-in-the-butt clients

to tangle with clueless judges

to not read great books

to not see great movies (go see "A Most Wanted Man" John LeCare's intricate spy thriller and Phillip Seymour Hoffman's last great role.)

to hate your job

to not love and laugh and live. 

So get off your couch and follow your dreams. 

See you in court Monday. 

Wednesday, July 30, 2014


Longtime and careful readers of this blog know the high regard in which we hold US District Court Judge John Gleeson (EDNY). And Judge Gleeson again proves that humanity and common sense belong in the justice system. In Judge Gleeson's courtroom, he has no use and little patience for the "it's not my job" and "there's nothing we can do" attitude. 

As you peruse this opinion, and you are hopefully a judge or prosecutor, ask yourself the tough questions- is it easier for you to deny a motion or a request from a defense attorney because it's not your job, or because there's nothing you can do, or because the "victim wants the max?"

Who among you is prepared to make the hard decisions for justice? As Judge Gleeson writes- "It's easy to be a tough prosecutor." And as we say "It's easy to be a tough judge." 

Are you the kind of prosecutor or judge who takes the easy way out? 

It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s nothing we can do” about an excessive sentence after all avenues of judicial relief have been exhausted. Doing justice can be much harder. It takes time and involves work, including careful consideration of the circumstances of particular crimes, defendants, and victims – and often the relevant events occurred in the distant past. It requires a willingness to make hard decisions, including some that will be criticized. 


The United States Attorney has shown here that justice is possible in those cases. A prosecutor who says nothing can be done about an unjust sentence because all appeals and collateral challenges have been exhausted is actually choosing to do nothing about the unjust sentence. Some will make a different choice, as Ms. Lynch did here. 

Monday, July 28, 2014


Every now and then the system works. A wise and experienced and successful individual runs for judge not because s/he needs a steady paycheck and a decent retirement, but because they want to give back to this community and hopefully make it a better place to live, work and thrive.

Miguel De La O is one such judge. His recent monograph to the Miami Herald says it all.

We once heard (and winced) when an experienced judge told a new judge "you can do anything you want in 98% of the cases, and give the public what it wants in 2% of the cases and never worry about being re-elected." 

We once saw a judge go back on his word in chambers and sentence a client to thirty years because he was under scrutiny by the Herald. 

Judge De La O is NOT that kind of judge. And that is why sometimes, the system works. 

See You In Court. 

Thursday, July 24, 2014


In the arena of criminal law in Miami, Assistant Public Defender Brian McDonald has seen it all and done it all and given all to his clients.  He was here during the McDuffie and Lozano riots, and the crack scourge and the cocaine cowboy drug wars and saw the advent of minimum mandatory sentences wreck havoc on  his clients and their families.  And Friday he calls it a career at the PDs office.  Rumor has it that at Noon Friday there will be a soiree to wish him well. Stop by and raise a cool cola and say au revoir. (We weren't invited or you could also say hello to us as well.). This community owes a thanks to Brian McDonald and lawyers like him at the PDs office who stood up for those no one else would stand up for.

Well done Mr. McDonald. Well done indeed. Happy trails and godspeed.

Wednesday, July 23, 2014


(In a resigned voice as if he says this 100's of times a day):
"Hi. Welcome to the department of corrections. Please sign in and take a seat. We will be with your shortly."

"Yes, but you see I have to be back at work by 1:30 pm. Lots of people will be waiting for me."

"We all have to be back at work lady. Look around. See all those people ahead of you? They all want to be somewhere else too."

(Leaning over to whisper) "Yes, but you see, I'm a judge. I have a court calendar at 1:30."

Probation Intake Officer sitting behind the counter- leans back in his cheap, state issued swivel chair and loudly calls out to colleague "HEY GEORGE WE GOT SOME LADY HERE WHO SAYS  SHE'S A JUDGE!!" 
He swivels back to the woman: "Look lady, take a seat, right there, next to the governor and behind the senator."
 Probation Intake officer laughs to himself "A judge. Now I've seen it all." 

(Woman walks away, head hanging.)

Probation Intake Officer: "Hey lady, you need to sign in. Tell me your name. Your name."

"Lynn Rosenthal. Judge Lynn Rosenthal."

Broweird Judge Lynn Rosenthal entered a plea of no contest to the reduced charge of reckless driving (what the DUI mavens call in their unique vernacular and nomenclature a "breakdown".)
She was sentenced to three months probation and twenty five community service hours. 

The Sun Sentinel article is here. 

So go put your client on probation in Broweird. You never know who she'll meet. 

See you in court. 

Monday, July 21, 2014


There was a time, before legislators reacted to Hollywood movies and began enacting sentencing guidelines and minimum mandatory laws, when Judges could be Judges instead of calculators. 
There was a time when Judges like Ed Cowart, Tom Scott, Tom Carney, Herb Klein, David Tobin, were trusted with deciding a sentence. They presided over a case, or listened to the facts of a plea, and based on their legal experience, sentenced a defendant. 

Then a few sentences got headlines, a few movies began to show criminals being released from prison and running amok in society, and everyone over-reacted and the legislature placed most of the sentencing power in the hands of a 25-30 year old prosecutor a few years removed from law school. Judges, many of who were  practicing law for as long as many of the prosectors appearing before them were alive, were regulated to moderately paid calculators - sorting through the alphabet soup of minimum mandatory sentencing laws (HVO, HO, PERP, WTF, etc) the prosecution refused to waive, totaling points, and imposing sentences without regard to the particular facts of the case. 

Rare is the case where a judge has any real discretion. 

Rarer is the jurist with the guts to exercise that discretion. 

It's easy to sentence a defendant to the maximum prison sentence. It doesn't make headlines in the Herald. Dog bites man. 
It's hard to temper justice with mercy. To ignore the bloodlust of prosecutors after a hard fought trial and sentence a defendant to what he or she deserves (in that Judge's opinion) without the fear or the Herald or the dreaded "victim".  Man bites dog. 

When did "victims", most of whom are not lawyers, take over sentencing? 
When politicians took over criminal law. 
This is not to disparage the victim of a crime. 
But victims are emotionally attached to what happened to them. They mostly cannot see justice, and just want vengeance. And criminal law is supposed to be about justice and not vengeance. 
But walk through any criminal court these days and you frequently hear the refrain "The victim wants the MAX" as the prosecutor's explanation as to why they cannot offer a reasonable plea that everyone but the emotionally affected victim knows is correct.

Nobody (successfully) runs for office on the slogan "fair on crime." 

Enter Judge Milt Hirsch. Faced with sentencing a 76 year old lawyer with prison, he instead issued a sentence that he thought fair or just. 
Judge Hirsch's sentence might be right. 
Or it might be wrong. 

But on this point there can be no doubt- it's the sentence of a JUDGE. Not a coward. Not a prosecution lackey who's afraid of the Herald and kowtows to victims who are understandably and rightfully upset. 
Tough decisions aren't always popular. But this is why we pay Judges those mediocre salaries: to do justice in the face of cries for vengeance. 

Sometimes, as Winston Spencer Churchill observed, you need to fight even though you may not win:

“If you will not fight for right when you can easily win without blood shed; if you will not fight when your victory is sure and not too costly; you may come to the moment when you will have to fight with all the odds against you and only a precarious chance of survival. There may even be a worse case. You may have to fight when there is no hope of victory, because it is better to perish than to live as slaves.”

Better to do justice as a Judge, then perish a slave and lackey to prosecutors and negative media. 

Saturday, July 19, 2014


Miami Dade Judicial races bring out the......best? nah.  Brightest? Hardly. 

But a lawyer with an ethics probe or two? 
Take a number, get in line, pay your entrance fee and jump in the race. 

You wanna dance, you gotta pay the band. 
You wanna run for judge, you gotta pay the man. 
(taken from Rocky Balboa, Rocky.)

Benefited from a loophole.

And that brings us to Veronica Diaz, age 36,  Assistant City Attorney, legal experience about ten years, life experience less than four score.  Clerked for which Justice of the Supreme Court? Circuit Court? District Court? Dunno. 

Authored which winning appellate  briefs before the 3rd DCA? 11th Circuit? Can't find any. 
Tried how many jury trials?  Not really sure. 

But she's newsworthy all right. 

Hustles cases from the City Attorneys Office and The City of Miami (Motto: "we're shocked! Shocked! to find fraud in our city") 
to her BF's law firm: "Dewey, Cheatdecity, & Howe". At least that's the allegations. And as even an experienced and wise litigator like Ms. Diaz can tell you: innocent until proven.....hmmm..oh, yeah, guilty. Or as we say in Miami: Cupable. 

The sordid mess is reported in the Herald here. 

What the city didn't know at the time — and which nobody appears to have disclosed — [Horvat] was required to transfer its entire fee to the law firm run by Diaz's live-in boyfriend, Alvarez, under the terms of Horvat's employment arrangement with Alvarez Carbonell,” investigator Lawrence Lebowitz wrote.
The requirement was triggered, according to the investigator, because Alvarez brought the work to Horvat.
The no-bid contracts with Horvat didn’t violate any purchasing laws, because unlike other city departments the Miami City Attorney’s Office contracts with attorneys without a bidding requirement or any kind of rotating contract system. But Lebowitz wrote that “the appearance of impropriety is strong.”
“The only reason a complaint is not being filed under the anti-Nepotism provisions of the county code is because ‘fiancĂ©’ or ‘long-term, live-in boyfriend’ are not included in the definitions of what constitutes an ‘immediate family’ member,” he wrote. (Rumpole notes: this is what you call a classic legal loophole.)

Read more here: http://www.miamiherald.com/2014/07/18/4243400/ethics-probe-assistant-miami-city.html#storylink=cpy

Ms. Diaz might not have all the credentials one would hope for in a potential jurist given the power of life or death over a defendant, but she's got life experience. That's what being under investigation does to you. It gives you experience and perspective. 

See You Monday. 

Oh yeah, there's another investigation- she likes to rock out to electronic dance music at Ultra for free, which is otro problema for the candidate, since she accepted two free weekend VIP passes valued at $1,500.00 while negotiating with the Ultra producers on behalf of the City. 

Leaked copies of a separate, ongoing audit show that Diaz is also currently under scrutiny for her receipt of two free VIP tickets from the Ultra music festival — a practice that isn’t uncommon among public Miami-Dade officials.

Ok, that's all for now because it's almost dinner time and we have to go buy dinner for the prosecutors handling our client's case Monday. No problem with that, right Ms. Diaz?

Read more here: http://www.miamiherald.com/2014/07/18/4243400/ethics-probe-assistant-miami-city.html#storylink=cpy