JUSTICE BUILDING BLOG

SHUT IT DOWN

2012-02-22T21:53:00.000-05:00

Supreme Court Roundup:
Filing a false tax return (a/k/a the great american hobby) was held to be a deportable offense. Kawashima v. Holder.

Miranda update: Who doesn't believe that a prisoner serving a sentence is NOT in custody for purposes of Miranda? (Hint: six of them work in Washington, DC).
Why it's our old friend Justice Alito and his gang of Roberts, Thomas, Kennedy, Scalia and Kagan who comprise perhaps the only six people on earth who don't believe that being in prison is being in custody. All the fun is here in Howes v. Fields.

SHUT IT DOWN:
When Republicans gleefully talk about slashing the budget and shutting the government down, here is a real life and death practical consequence of that kind of nonsensical rhetoric: children dying because of a shortage of a cancer drug according to the NY Times:

Dire shortages of two critical cancer drugs — shortfalls that have threatened the lives and care of thousands of patients — should be resolved within weeks, federal drug officials said....

There is a years-long backlog of applications for new generic drugs at the F.D.A. because the government does not have the money to hire enough reviewers to analyze the applications or inspectors to visit the facilities, many of them abroad. The generic drug industry tired of waiting for Congress to fully finance the F.D.A.’s generic drug office and this year proposed providing the agency with $299 million in annual fees to finance the review process...

[T]he pharmaceutical company Hospira is rushing 31,000 vials — enough to last the entire nation a month — of preservative-free methotrexate from its plant in Australia to the United States. Hospitals began receiving the drug, which is vital in the treatment of a common form of childhood leukemia, on Tuesday. The F.D.A. has also hastened the approval of an application by APP Pharmaceuticals to manufacture methotrexate, an application that has languished since 2010.

“Children are at such risk from drugs in short supply that it doesn’t give me a whole lot of comfort that we’ve moved past one or two of these shortages,” Dr. Adamson said. “What about the next one? And the one after that?”

But here's the thing, and maybe Justice Scalia can assist us, but we have checked the Constitution and do not see any mention of the FDA anywhere. What gives? Shut it down; defund it (cue large applause of tea party morons sitting in the audience; check that-cue large applause of "healthy" Tea Party morons, because it's amazing how quickly you understand how the FDA works when you have cancer).
So the next time you see a bunch of yahoos clapping like mad while one of the Republican ~~lunatics~~ candidates talks about not funding government agencies, scan the crowd to see if any them look sick or are wearing a hat because they've lost all their hair to chemotherapy. Odds are the crowd cheering are a healthy bunch of sons of guns.

See You In Court.

LINES

2012-02-22T10:00:00.001-05:00

This was the distressing scene outside the rear of the REGJB Tuesday morning as crowds jammed and overwhelmed the aging facility we who labor there call home.
(Thanks to the alert reader/attorney who snapped this picture before heading into the building. If more readers would email us pictures of problems, we be able to spend less time thinking about what to write.)

The problem with courthouse lines is that it lessens the public's confidence in the court system. For a country that prides itself on giving everyone "access" to the courts, in Miami criminal courts, no one really has "access" when it takes 75-90 minutes to get into the damn building.

What can Brown do for you?

See you in the building no one can get in to.

BLASTOFF - 50 YEARS AGO TODAY

2012-02-21T15:00:00.001-05:00

THE CAPTAIN REPORTS:
(Thank you to Rumpole for permitting this to be reposted this afternoon. My apologies to our readers for posting two posts on the same feature - but there is a slightly different slant to my post. I also have posted some new information on Elections & JNC appointments below).

50 YEARS AGO TODAY ......

..... Astronaut John Glenn climbed into his Friendship 7 space capsule atop an Atlas rocket at Cape Canaveral, blasted off, and became the first American to orbit the Earth.

Sometimes I think we forget about these monumental accomplishments in American history. Our children attending elementary, middle school and high school get little in the areas of history and civics. I would guess that if they were asked, "Who is John Glenn", less than 10% would have a clue. Sad state of our educational system, here in Florida, and all around the country. But our Republican presidential hopefuls will surely make the inability to obtain birth control a much higher priority than teaching about history or civics, if any of them are elected President this November.

And while we are talking politics, did you happen to read your local newspaper this weekend? The Herald invited former justice of the Florida Supreme Court Raoul Cantero and Mark Schlakman, a senior program director for the Center for the Advancement of Human Rights at FSU to write an OP ED about the Death Penalty.

The piece is entitled "Unanimous Jury Verdict A Must For Florida's Justice System". It is well written and it is speaking to deaf ears if it was meant to reach most of our elected legislators in Tallahassee. While they spend their time this session giving tax breaks to businesses that hire only non-union workers and redraw the geographic lines for the next decade of voting districts to make them "fairer", they ignore the two simple facts that speak loud and clear on this issue:

1. Of the 33 death penalty states, Florida is the only one that does not require unanimous verdicts. Even Georgia and Texas demand a 12-0 vote.

2. Since 1973, Florida leads the country in reversing more death sentences than any other state.

You can read the entire Op Ed here:

http://www.miamiherald.com/2012/02/18/2647451/florida-ignores-unanimous-jury.html

We hope everyone enjoyed their President's Day Weekends. For those of you youngins', we used to celebrate our 16th President's birthday, Abe Lincoln, on February 12th, and our 1st President's birthday, George Washington, on February 22nd. Congress finally changed that in 1971 when they decided to move most federal holidays to Mondays. They chose the third Monday in February to honour our first President, but rejected the part of the legislation that would name the holiday President's Day. Instead, today we actually honor President George Washington's Birthday. Of course, our retailers didn't see it that way, and over the years, they continually called it President's Day, until the name stuck.

On the Election & Appointment news of the day:

Circuit Court - Group 49

As a result of Richard Hersch's appointment last week by Governor Scott, Group 49 found itself with only one candidate: Victor De Yurre. That was until County Court Group 28 candidate Teresa Pooler, (sister of Katie Pooler), withdrew from that race and filed in the Group 49 race. So, for now, County Court Group 28 is left with lone candidate Tanya Brinkley.

JNC: Circuit Court .....

The JNC has received applications from 16 attorneys and three County Court Judges for the open seat of Judge Julio Jimenez. The shock is from who is NOT on the list. After applying for what must have been a dozen or more times, and being nominated by the JNC to the Governor's office a dozen or more times, Judge Deborah White-Labora has not applied for this seat. Judge White-Labora told me last month that she was done, for now, applying, if she did not get the appointment that recently went to Richard Hersch. Can you blame her?!

Also missing from the applicants: Miguel de la O, who was another one of the six finalists in the Hersch group from last month. De la O is currently a candidate for Circuit Court Judge running against Greer Elaine Wallace in Group 42.

Those on the list include:

Paul Aiello, Steven P. Befera, Manuel L. Casabielle, Judson L. Cohen, Michelle Ashby Delancy, Ariana Fajardo, Alan S. Fine, Andrew S. Hague, Victor J. Hayes, Lisa Lehner, Christine Lopez-Acevedo, Louis V. Martinez, Cristina Miranda, Jonathan Parker, Bonnie Riley, Vivian Rosado, Alan D. Sackrin, Rodney Smith, Veronica A. Xiques

JNC: County Court .....

Interviewing this Friday, February 24th, for the open County Court seat of Norma Lindsey:

Veronica Adriana Xiques, Rodolfo A. Ruiz, Vivian Rosado, Yadira Pedraza, Jonathan Parker, Gordon Charles Murray, Sr., Jonathan Meltz, Steven Lieberman, Carlos Guzman, Vincent Peter Farina, Ivonne Cuesta, Judson L. Cohen, Manuel Casabielle, Tanya Brinkley, Christopher Andrew Angell, David Alschuler .

CAPTAIN OUT ...........

GODSPEED JOHN GLENN

2012-02-20T20:54:00.002-05:00

IT'S FAT TUESDAY and we will be having pancakes for dinner (but lunch at Irene's) The Captain's take on John Glenn is coming and w are happy to report Maya Angelou is out of the hospital.

"Godspeed John Glenn". With those words, said fifty years ago Monday, the United States entered the space race for real as Glenn became the first American in orbit. For further reading on the first seven American astronauts (The Mercury Seven), you can do no better than Thomas Wolfe's "The Right Stuff."

We've been thinking a lot lately about "American Exceptionalism" and the fact that there is no such thing. If you think there is, try flying in a plane built by people who brag about American Execptionalism instead of by qualified engineers. Americans have done exceptional things. Indeed we have saved the world from tyranny. Multiple times. But you can't spend money already spent. Each challenge must be met by that generation and merely prattling about how good you were last week or last century gets you nothing. We personally like nothing more than kicking the butt of the lawyer who tells us they've never lost a case, because their record means nothing in the current case.

As we think about John Glenn's remarkable achievement, we wonder where all the criticism is? Glenn was launched into space by NASA- a taxpayer funded agency. We don't see anything in the Constitution about space or NASA. NASA created the rockets that launched the space capsules through partnerships with hundreds of small companies and several large contractors. And it wasn't the idea of American Execptionalism that created the rockets and capsules. It was exceptional Americans that got us into space and to the moon and safely back, except for the brave men of Apollo One.

An individual company on their own or even in concert with others could not have afforded the billions of dollars it cost to land a man on the moon by the end of the decade and bring him safely home. And what profit was there in creating the lunar lander or the Friendship Seven or the Gemini and Apollo series of space crafts? Without a partnership between the Government and private industry we all would have been going to sleep-in the words of Lyndon Johnson- by the light of a communist moon.

Yet in the current environment such promotion of governmental partnerships gets you called a "socialist" or worse by the Republicans. Yet strangely we don't hear anyone criticizing Eisenhower or Kennedy or Johnson or Nixon (that's two Republicans and two Democrats for those of you counting at home) for creating NASA and spending billions of tax payer money landing men on the moon. Why the silence? It's deafening- and there's nothing exceptional about that.

Coming soon: "Pando and the Faber Effect. "

PRESIDENTS' DAY LONG WEEKEND

2012-02-16T20:22:00.001-05:00

UPDATE- The PDs report they're closed. The SAO is open. The courts are closed. RC is just thankful they have Gene Zenobi.
Broweird? Do you even need to ask? (open).

Lots of things to do this long weekend, as long as you're not an ASA, PD or full-time Assistant Regional Counsel (see, we remembered you guys for once) as courts are closed Monday, but state offices are open.

But if you're an ASA or PD and per chance get the Washington/Lincoln flu, here's what you can do:

The Boat Show is in town at Miami Beach. Go catch Rumpole looking to trade up.

The 49th Coconut Grove Art Festival is this weekend in....Coconut Grove of course. Go sneak a peak at Rumpole perusing the art exhibits and snacking on a pita stuffed with greek salad.

The federal guys are rightfully excited about the confirmation of Judge Jordan to the 11th Circuit Court of appeals. This was a no brainer nomination and confirmation and it was a appointment that was more than well deserved. There wasn't a more professional, courteous and downright intelligent Judge in the Southern District and that reputation began well before Judge Jordan took the bench. The only downside to the confirmation is we lose a great trial judge. Meanwhile, with Jordan confirmed, Atlanta super attorney Jill Pryor was nominated for a seat on the eleventh circuit Thursday. DOM has all the details. Click above.

In Maples v. Thomas the U.S. Supreme Court gave an Alabama death row inmate another legal chance when his big shot Sullivan and Cromwell attorneys abandoned him. Here is the amicus brief by a group of Legal Ethics Professors and a group of law students at the Yale Ethics Bureau.
S&C is hung out to dry.

The DOW closed at its highest level in four years Thursday. Unemployment claims for January were the lowest in four years. The economy is coming back just in the nick of time and the Republicans are so baffled at what to do now that they are flinging condoms at each other.

It should be an interesting spring and summer until the GOP convenes in Tampa. Set aside our usual table at Berns for the week.

See You Tuesday.

FUNDRAISER FOR DAVID PAULUS

2012-02-14T19:58:00.002-05:00

Before we get to the fundraiser details, the great man has spoken and we need to pay attention.

Albert Krieger in court was a magical thing to observe. His voice boomed from the podium, filling the courtroom. Its rumbling bass made prosecutors tremble and witnesses crumble. Jurors nodded in agreement and vexatious judges were lost in the roar . So when Albert Krieger speaks, even by email,you had better listen. And here is what he wrote on the FACDL listserv about the appointment of Richard Hersch:

"How wonderful for all of us, the bar and the public. Richard is everything a judge should be and we will all benefit from his service."
High praise for Mr. Hersch indeed.

There is a fundraiser for the late David Paulus, an Assistant State Attorney who recently passed away after a courageous and lengthy battle with brain cancer. Mr. Paulus is survived by his wife and three children. If you know anything about health care circa 2012, you know that no matter how comprehensive the coverage, the portion of the bills not covered can be crippling, especially for a public servant. This is a worthy cause, please attend or donate.

Domino Effect - David Paulus 2012

Our final story is a crime drama. The perp wielded a machete. The victims kept their cool and handed over $1,000.00 in cash. Luckily no one was hurt. The victim? United States Supreme Court Justice Stephen Breyer, on vacation at his Nevis vacation home.
Maybe now he knows why eyewitness identification is so unreliable. One can hope.
See You In Court.

THE HONORABLE JUDGE RICHARD HERSCH

2012-02-13T20:43:00.001-05:00

As most of you now know by now, Richard Hersch was appointed to the circuit court by Governor Scott today. The Governor continues to exceed expectations on judicial appointments and this is another home run.

Just like in years gone by when we had a gaggle of Judge Klein's (Gerry, Murray, and Herbert) we now have a duo of Judge Hirsch/Hersch's. And as Judge Hersch would be quick to quip, "What is in a name? That which we call a rose by any other name would smell as sweet." And that which we call a Hirsch/Hersch by any other name would judge as well.

Not to be petty, but now that he is appointed, when will we be getting our $500.00 bucks back that we donated to his campaign? Or did we not send a donation, secure in the belief he would be appointed? We'll have to check the books and get back to you on that.

Oh...and of course Richard Dreyfus plays Judge Hersch in the movie.

(not Judge Hersch)

OK. A little blog experiment.
Close your eyes. Inhale slowly...1..2...3...4..5..6..7..8..9..10 (you too, President Clinton)
Now hold hold it.....
And exhale slowly.....P...A....N...D...O..
...and let it go.....P...A...N...D...O....
Let it go and move on dot org.
Lots of responses and comments over the weekend to Judge Pando's peculiar letting writing habits. Now it's time to move on.
See You In Court.

Judge Pando: "The Rest of the Story"

2012-02-11T00:21:00.014-05:00

BREAKING NEWS ..... Governor Rick Scott appoints Richard Hersch to the Circuit Court. Congratulations to Richard.

THE CAPTAIN REPORTS:

JUDGE PANDO, FLORIDA WELLNESS, AND PIP SUITS ....

First things first. Horace, you should know by now, that if you want an investigation done right, you should not be turning to Carmel Cafiero, when you have your top notch investigative reporter right here on staff. And with that, I add to your post:

Judge Ana Maria Pando:

A graduate of UM law, she became an attorney in 1988. She joined the Miami City Attorney's office in 1991 and spent most of her legal career there. She was first elected County Court Judge in 2000 and took office in January of 2001. She was re-elected in 2006 and is again running for re-election in 2012.

Florida Wellness & Rehabilitation Center, Inc.

Florida Wellness & Rehabilitation Center, Inc. is owned by Dr. Mark Cereceda. Dr. Cereceda actually owns numerous clinics under the Florida Wellness name. Florida Wellness of Little Havana, Florida Wellness of FIU, Florida Wellness of South Miami, and Florida Wellness of Hialeah are just a few of his locations where his clinics generally treat people injured in auto accidents. They offer physical therapy to their patients along with chiropractic adjustments. They are paid, overwhelmingly, by auto insurance companies, whereby Florida Wellness files claims under the PIP coverage of the injured person's auto insurance policy.

PIP & PIP SUITS

Florida law requires you to carry only two types of coverage as part of your automobile insurance: Personal Injury Protection (PIP) and Property Damage Liability. Your PIP coverage provides you with up to $10,000 to pay for "reasonable and necessary" medical expenses as a result of injuries sustained in an auto accident.

Dr. Cereceda's clinics submit thousands and thousands of HICF's (Health Insurance Claim Forms) to auto insurance companies on a monthly basis. Sometimes they are paid; many times they are not paid. When they are not paid, it is usually because the auto insurance company has made a determination, rightly or wrongly, that the medical care received was not medically necessary. When Florida Wellness is not paid, they will sometimes get an assignment from the injured patient, and they then file a PIP SUIT against the auto insurance company for not paying them within the statutory time required by law. These cases are filed in County Court, and many of these cases end up in Branch Court in South Dade, Coral Gables, North Dade, and in HIALEAH - before Judge Ana Maria Pando. If they are successful, the Plaintiff clinic is paid the money they are owed, interest on that money, court costs and attorney fees. There are many law firms that work almost exclusively on PIP suits and they make a very good living doing it.

THE FACTS:

1. On May 4, 2011, Articles of Dissolution were filed by Fastkit Corp. on behalf of Florida Wellness & Rehabilitation Centers, Inc. Fastkit is one of these companies that handle all of the paperwork with the Florida Department of Corporations on behalf of a corporation.

First problem with these Articles is that they were signed by someone who is NOT a Director of the corporation, according to the Florida Department of State. The signature line prints the name Luana Alonso. The signature above it does not appear to be that of a Luana Alonso. It represents that she is a Director of the Corporation. Based on the available research we could locate online, she is not.

2. On October 12, 2011, an accountant by the name of Lestor Barreras signs an Affidavit. Barreras is the CPA for Dr. Cereceda and his clinics. In the Affidavit, Mr. Barreras states that his office inadvertently dissolved the corporation by filing the papers with the Florida Dept. of Corp.

Problem with that is, they did not file the papers. Fastkit did. In all fairness, they may have prepared the papers and forwarded them to Fastkit, who then filed the papers.

3. On October 14, 2011, Judge Ana Maria Pando prepares a letter on her official Judicial stationary. The letter is faxed to Mr. Jay Kassees, Division Director, Division of Corporations. Attached to the letter is the Affidavit from Barreras. In the letter, she refers to Florida Wellness owner Mark Cereceda. She tells the department, "I see no reason not to reinstate the above-mentioned corporation. If you have any questions please feel free to contact me. Sincerely, Judge Ana Maria Pando. "

Well, what was she thinking.?! Mr. Cereceda, through his many clinics, appears as a Plaintiff in dozens of cases, all before Judge Pando. The Judge has to rule in each case and her decision will determine whether Mr. Cereceda's clinics get paid their money - his money. What in the world was she thinking?

4. On October 24, 2011, the Florida Department of Corporations acts on the letter sent by Judge Pando. They decide, based on the "Court Order" they received, that they are "re-activating corp. status". They also decide to charge Florida Wellness NO FEE for the reinstatement.

I am attaching to this post the Affidavit from Barreras, the letter from Pando, and the action taken by FDOC. http://www.sunbiz.org/pdf/80709709.pdf

And with that, Florida Wellness and Rehabilitation Center, Inc., is again a registered Florida Corporation. Kind of important because there are hundreds, (currently approximately 200) cases filed in the County Courts of Miami-Dade County where the Plaintiff is listed as Florida Wellness.

5. Judge Pando has opened a campaign account and she has raised $69,685 through the reporting cycle December 31, 2011. Here are some notable contributors:

*Florida Wellness Little Havana, 11/11/11, donated $500.
*Florida Wellness FIU, 11/11/11, donated $500.
*Florida Wellness South Miami, 11/11/11, donated $500.
*Florida Wellness Hialeah, 11/11/11, donated $500.

Performance Orthopaedics, 11/11/11, donated $500. (This writer believes that Dr. Cereceda has an ownership interest in this medical provider).

*One minor problem with the checks that were written by these four corporations in November of 2011. The four corporations did not exist in November of 2011. That's because, in September of 2011, Dr. Cereceda changed the name of all four of the corporations to Ceda Health of Little Havana, Ceda Health of FIU, Ceda Health of Hialeah, and Ceda Health of South Miami. I have no idea whether there is a problem with a Judge accepting checks from a corporation that does not legally exist; or whether Dr. Cereceda violated any campaign donation laws by issuing checks on corporations that no longer existed.*

6. Dr. Cereceda has retained numerous law firms over the past four years to file these PIP suits on behalf of himself and his clinics. As stated above, there are at least 200 such cases currently listed on the Clerk's website. In the past twelve months, there have been at least 34 cases filed in the Hialeah branch court that are now before Judge Pando. All of those cases were filed by either attorney John Llarena of Hess & Llarena or by attorney Todd Landau.

7. The 34 cases filed by Llarena or Landau are all PIP suits filed against automobile insurance companies. Those companies include:

Progressive - 7 cases; State Farm - 11 cases; Allstate - 6 cases; Kingsway Amigo - 4 cases; GEICO - 3 cases; and Responsive, Safeco, and Infinity, with one case each where they appear as a named defendant in these PIP suits. These cases have all been filed between March and December of 2011.

8. Here is a list of some of the attorney/law firm contributors to Judge Pando's campaign that have held themselves out as Plaintiff's counsel for Florida Wellness in the past four years:

***John Llarena, 11/8/11, donated $500.
***Hess & Llarena PA, 11/8/11, donated $500.
***Todd Landau PA, 11/8/11, donated $500.
Buchalter, Hoffman & Dorchak PA, 11/9/11, donated $500.
Paul Schrier, 11/8/11, donated $500.
Paul Schrier PA, 11/8/11, donated $500.
Armando Brana, 11/8/11, donated $500.
Armando Brana PA, 11/8/11, donated $500.
John Friedland PA, 11/8/11, donated $250.
Kevin Whitehead, 11/8/11, donated $500.
Kevin Whitehead PA, 11/8/11, donated $500.
Bernard Butts PA, 11/14/11, donated $500.

Please note that according to our research of the Clerk' s office records, it appears that only Llarena and Landau have cases filed before Judge Pando at the Hialeah branch court. The other attorneys listed above have open cases in other branch courts throughout the County on behalf of Florida Wellness; these cases are not before Judge Pando. In fairness, all of these donations appear to be legal and within the laws of the State of Florida as they relate to donations to a judicial campaign.

So now you have heard "the rest of the story". Care to comment?

CAPTAIN OUT .....

A MOST PECULIAR CASE OF PANDO

2012-02-10T21:19:00.001-05:00

Carmel Cafiero of WSVN channel seven wields a rather sharp hatchet, which she does not hesitate to use on the subjects of her stories on the nightly newscast; the pieces are edited with quick cuts, and dramatic music and graphics, all done in a manner designed to inflame the viewer against the subject of her story.

Enter Judge Pando of the County Court in Hialeah and this story.

The Facts:
Florida Wellness and Rehabilitation Center is a corporation being sued in several cases before Judge Pando.

In 2011 the company filed papers with the secretary of state to dissolve the corporation. An accountant for the company later said the papers were filed in error.
Query: How does one mistakenly produce the necessary paper work to dissolve a corporation, then mistakenly put it in an envelope addressed to the secretary of state, then mistakenly put a stamp on it and then mistakenly put the envelope in the mail?
Answer: The account is Rosemary Woods reincarnate. (You young PDs and ASAs go ask your parents who Rosemary Woods was.)

Enter Judge Pando, who inexplicably (at the moment-perhaps the Judge will explain) then wrote the secretary of state asking them to reinstate the corporation. The secretary of state did so and notated on the file "re-instated by court order." The secretary of state then went out and had a drink, having worked harder on this case in a few days then he/she has for the year so far.
Item: a month after the letter was sent, four separate Florida Wellness clinics contributed the maximum of $500.00 to Judge Pando's re-election campaign (the Judge is on the ballot with Barak Obama this fall).

The piece ends on a high note with clips from a 2005 video from the Florida Supreme Court issuing Judge Pando a public reprimand for some transgression during her prior campaign.

As always, we invite the Judge to respond by email with the assurance her response will be posted on the front page unedited and without snarky comments.

TWO JUDGES

2012-02-09T20:00:00.000-05:00

Two Judges both alike in dignity, in fair Miami where we lay our scene...

We received two emails this morning from two judges who asked us to post something, and because Chief Judge Federico Moreno is a gentleman, the email from the Honorable Yvonne Colodny will go first:

Dear Rumpole,

As a result of a recent blog discussion regarding my extended leave my wonderful judicial assistant, Nikki, has been inundated with calls and visitors concerned about my absence.

While I am sincerely grateful for these expressions of concern, they are truly unnecessary. The reason for my not so mysterious absence is this.........his name is Charlie, weighing in at 6 pounds 14 ounces, born on February 2nd. I suppose the judicial robes were more forgiving than I ever thought!

I will be on maternity leave until May 2, 2012. Until then, senior judges will be covering the division.

And, as always, LET'S GO HEAT!

Yvonne Colodny

And now the honorable Chief Judge of the Southern District of Florida, Federico Moreno, who started his judicial career as a humble county court judge back when our courthouse was known simply as The Justice Building:

Rumpole, I must confess that from time to time I read your blog as well as other blogs. However, I have never written to a blog, but I do so now because in the past I have seen how you remember "the old guys" on the bench. You probably missed the obituary on the death of Judge Richard Hickey. I went to his funeral mass yesterday where his son-in-law David Rothman, as well as his sons Dickie and Joey( Judge Hickey had 8 children) reminded us of Judge Hickey's service in the Navy. He was part of the Normandy invasion, and served in Italy and the Pacific too during WW II. I have always admired the Greatest Generation , including the President who appointed me, Bush I, and know from your prior reports that you share that admiration. Judge Hickey was an Irish mench on the bench. An honorable, hard working, fair, compassionate and always polite to all at the MJB from the time when he did preliminary hearings until after he was appointed by Governor Askew (another great man) to the Circuit Court in 1978. I know that so much time has passed since Judge Hickey's retirement in 1989, only the older readers of your blog will remember him. But it may be worthwhile to recognize the good guys on the bench, even long after they have left the bench. FAM

Well said by a Judge who obviously exhibits excellent taste in his reading habits, and more importantly, about Judge Hickey who indeed exemplified the Greatest Generation. He went to war to defend liberty and freedom and his nation and then returned to raise a family of eight children and finally dedicate his talents to serving his fellow citizens on the bench. "An Irish Mench" sums it up. Thank you, your honor, for helping us remember.

HR.

"THE STATE OF FLORIDA IS NOT MADE OUT OF MONEY"

2012-02-08T21:49:00.001-05:00

The following is courtesy of the JAA Broward Blog. We do not know any of the individuals involved in this matter. Warning: for practitioners of criminal law, the following may be disturbing. Reader discretion is advised.

Dramatis Personae: Judge Matthew Destry, Broward County; Ira Still, Esq, defense attorney; Rossaine Baker, client; JAC and the Broward State Attorneys Office-bureaucracies extraordinaire.

Background: Rossaine Baker was by all appearances a client in need. Sitting in jail for five months, charged with interrelated life felonies in two separate cases, her case was going no where fast and her future was bleak. Enter attorney Ira Still who was appointed to represent Ms. Baker. The title of the post links to the JAA blog's transcript of the fee hearing in which Mr. Still lays out the remarkable job he did. Some highlights: he took over the case and prepared for trial in less than a year which included depositions of over 80 witnesses. To do this he basically shut his office down regarding working on other cases. In the first case, Rossaine Baker was acquitted of armed burglary and aggravated battery after a four day trial.

In the second case the prosecution charged Rossaine Baker with attempted murder and armed kidnapping, the theory of the case being that Rossaine Baker tried to have the victim in the first case killed so as to avoid prosecution. Central to the theory of the first case was the prosecution's William's rule motion to introduce the facts of the second case. Motion denied after the defense filed a 20 page memorandum.

After the acquittal in the first case. Mr. Still obtained bond for his client in the second case. Then, based on how apparently flimsily the evidence was in the first case, Mr. Still attempted to save the State of Florida money by trying over and over to convince a series of prosecutors to not try the second case which was a sure acquittal. But lets remember this is Broward where Mr. Satz lives by the credo "try em all, let the jury sort it out."

The second case proceeded to trial but not before the witness tampering charge was dismissed by defense motion based on double jeopardy because of the acquittal in the first case. The second case also apparently involved the use of cell phone experts to show that the prosecution's allegations about the defendant making phone calls which would show her guilt were completely false. To make a long story short, the Defendant was acquitted in the second case.

After a spectacular job, Mr. Still submitted a bill for $95,872.50 based on billing at $75.00. That's 1,278.3 hours for those of you scoring at home. After auditing his bill, JAC did not find anything objectionable as to the hours billed or the form of the bill. But they did not want to pay.

Judge Destry remarked that "the State of Florida is not made of money" and then issued the following ruling:

A) Granted the attorneys fees request in full.
B) Cut the bill in half.
C) Cut the bill to the statutory cap of $2,500 per case.
D) Cut the bill to $20,000.00 for both cases.
Go to the comments section for the answer.
Click on the title of the post and read the transcript of the hearing. It's well worth a read.
See You In Court.

AN AGE OLD QUESTION

2012-02-07T20:10:00.000-05:00

Did you ever wonder why.......

Why we do what we do as Criminal Defense Attorneys

Presented by Attorney

David Oscar Markus

David Oscar Markus will provide a motivational lecture on the moral, legal and ethical obligations of our noble responsibilities as criminal defense attorneys. David will share some of his insights and strategies in preparing and defending criminal cases.

Tuesday February 28^th, 2012

12pm to 2pm at the Public Defender’s office in Room 110

RVSP to Maria PH at 305-545-1902 or mprovostheron at pdmiami.com by February 24th 2012.

There is absolutely no truth to the rumor we will be heckling Mr. Markus...

DRUNK AND INCOHERENT

2012-02-06T19:24:00.001-05:00

Here is the real headline from the Miami Herald- we are not making this up:
"Drunk, Incoherent Man Mysteriously Dropped Off At Courthouse". Click the link and see it for yourself.
Our first thoughts revolved around the too many glasses of champagne we consumed Sunday celebrating our good fortune. When we remembered we weren't in Miami, our next gleeful thought was "which judge is it?"
From the article: "The drunk man could only mumble when asked why his friends deposited him at the courthouse." The plot thickens as it could be any number of robed readers we know.

Read more here: http://www.miamiherald.com/2012/02/06/2628079/drunk-incoherent-man-mysteriously.html#storylink=cpy"

What's the worst possible thing you could imagine happening to you (outside of being deposited by your so called friends drunk and incoherent at the courthouse? Which by the way got us thinking: "weren't there any strip clubs around?")
Whatever your worst personal nightmare is, having a fully loaded port-a-potty truck overturn on your lawn must be at the top of anyone's list. The Herald has the messy details here.

What's worse than losing the super bowl? Having your QB's super-model wife blame you for it: Here is the Patriots new wide receivers coach on the fundamentals of the game: You have to catch the ball when you're supposed to catch the ball," Bundchen is heard saying. "My husband cannot [expletive] throw the ball and catch the ball at the same time."

Super Bowl wrap up: Here are the numbers that count: since being exposed as a cheater, the Bill Belichick coached Patriots are 12-13 in playoff games and 0-2 in Super Bowls. Heck of a genius of a coach.

See you in court.

DON'T BET ON IT

2012-02-06T05:46:00.001-05:00

Before we begin- we nailed the coin flip again yesterday. In super bowl coin flips, we believe we have called each one correctly but one since starting the blog. Plus we told you the Giants +3 was a great bet and we told you to forgo the points and take the money line because the Giants were going to win outright.
When will you listen?

And now...Don't Bet On It....

Somewhat quietly, and not with a bang but a whimper, the bill to bring a mega-casino to the Miami Herald property fizzled and went bust in the Florida legislature last Friday. Genting Berhad, the Asian company that bought the Herald property and made the bet, threw a seven on it's second roll, which any Vegas craps player will tell you results in the stick man shouting "seven out!" and wiping all the chips off the table and into the coffers of the house.

Next shooter?

The NY Times covered the defeat of the gambling bill, and not surprisingly, all the usual suspects were behind the murder of the bill: Disney World, The Florida Chamber of Commerce, Norman Braman, some religious groups and the Miccosukee Indian tribe, which has a near monopoly of the Casinos already operating in Florida.
Casinos and legalized gambling make strange bedfellows.

We're not sure how we felt about the prospect of a mega-casino five minutes away from the REGJB.
Judges leaving court early to catch the 7pm Cher Concert?
Racing from morning calendar to get in line early for the $9.95 lunch buffet?

In the final analysis, these are the things people fly to Vegas for. And in our humble opinion, they are better left in Vegas.

See You In Court.

GIANTS WIN SUPER BOWL

2012-02-04T21:48:00.003-05:00

SB UPDATE: I'll be live blogging the game a bit with comment moderation off, so dig in and enjoy the game and post your comments which will be visible immediately.

That should be the headline Monday. Will it be?

The last time the Giants beat the Cheaters in the Super Bowl they battered Brady into submission. So that should be the playbook this time, right? Lots of blitzes and stunts and safeties shooting the gaps.

Not this time. Not if Giant Coach Tom Coughlin is smart. The way to beat Tom Brady and Bill Belichick this time is not to blitz, but to rush two or three and keep eight or nine men in coverage, a/k/a The Dime Defense. Go ahead and let the Patriots run. Their running game never beat anyone and it never will. But their wide receivers break the best teams if they aren't properly covered.

Most important change: the Giants best defensive back plays Wes Welker wherever he lines up, including the slot. This is key. Welker beats linebackers like The Mavs beat the Heat- easily.
In a dime defense, there are six defensive backs, and then either four defensive linemen and one line backer or three d-linemen and two linebackers. The key is to put a corner back and/or safety on every Patriot wide receiver when the Patriots go five wide, which they do quite often. And out of the five wide set you will see if you study their film that they run crossing routes, Welker in the slot waiting while Branch crosses in front of him at the snap. By the time the linebacker sheds Branch's "pick" Welker is eight yards down the field. Tight man coverage at the line will stop that.

The Giants offensive will score almost at will against a weak Patriots defense. Belichick will take his QB in a shootout against any QB in the league. So this game boils down to the Giant defense stopping the Patriot offense.
When there are seven or eight defensive backs in coverage, it throws off Brady's short passing timing routes. Tight man coverage by corner backs with two safeties playing zone and perhaps one linebacker either blitzing or doubling one of the troublesome Patriot TEs is the way to disrupt the Patriot routes and confuse Brady. With eight backs n coverage, a tipped ball turns into a pick six more often than not. If the Giants can do this, they will win.

Giants 35-Patriots 27.

Take Heads in the coin toss.

WWMS

2012-02-04T11:52:00.000-05:00

What would Mitt say? Pick a topic:

Health Care: WWMS? "I can't stand all those sick people. They take up space in hospitals, and a recent poll shows that the Obama Administration's policies of health care are directly related to payments for sick people at hospitals and doctors. In a Romney administration that would stop. Hospital care for those who can afford it will be our new slogan."

The Mentally Disabled: WWMS? "They bother me. They annoy me. They bother and annoy plenty of americans. This will stop in my administration. They will be kept behind locked doors where they belong."

Hunger In America: WWMS? "Where? Who? I see restaurants plenty full, especially on weekends. Look, you can't have an obesity epidemic in America and still claim children are going hungry. "

Euthanasia: WWMS? "We are not the policemen of the world. Our own youth here in America have their own challenges and that's where our focus should be."

SUPER BOWL WEEKEND

2012-02-02T21:13:00.002-05:00

Before we begin, this is well worth repeating: David Paulus was a career public servant. He bravely battled brain cancer for the last few years, and that battle was expensive. Mr. Paulus leaves his wife and three children. There is a Paulus Family trust which you can donate to: Make your check out to the David Paulus Family Trust: and mail the check to : David Kahn, Esq. at Green & Kahn,
317 71st St., Miami Beach, FL 33141.

Here's what you do: On Friday or Saturday night skip that night out at Capital Grille or The Palm or Mortons, and mail a check for $250.00 or whatever you can afford. Then check out last weeks post and go to one of the pizza joints and get a pie and a six pack and sit at home and eat some pizza and drink some beer and feel great about doing a really good deed.

The Captain Reports:

Welcome back Judge Glick .....

That's Lenny Glick by the way as he will be sitting in for Judge Colodny who will be on an extended leave from the bench.

Great seeing you Judge.

Cap Out .....

Super Bowl: There is one more football game to be played this Sunday. A few facts: If they win, the Giants will be the first 9-7 team to win the super bowl (The Cardinals advanced to the super bowl as a 9-7 team a few years ago, but lost in the last minute.) The Giants will also be the first team to win a super bowl that gave up more points then they scored in the season (-6 for the year). This will be a close game but we look for some surprises. The cheaters could come out....running?? Meanwhile the Giants defense which beat and battered Brady into submission a few years ago is expected to blitz often. Just don't be surprised if they drop 8-9 into coverage and try and force Brady into making some mistakes.

More on the game this weekend.

How are the new judges doing? Are they finding their home room ok? Are they getting along with each other at lunch?

Here's the thing with Mitt: He just can't help himself. Every time he gets a big win, he puts his foot in his mouth.

See You In Court.

Coming Saturday: WWMS? (what would Mitt Say?)

DAVID PAULUS

2012-02-01T20:08:00.002-05:00

ASA David Paulus has passed away at the much too young age of 46.

Mr. Paulus was a worthy adversary in court. He was a tough as nails negotiator, and his dedication to the people of the State of Florida and Dade County as a public servant was nonparell. The people of Dade County are immeasurably better because of his service.

We invite those prosecutors and friends who worked closely with him to write in with their memories.

The Herald article is here.

The Captain informed us:
If you want to give a donation, they can be made to the David Paulus Family Trust and mailed to David Kahn, Esq. at Green & Kahn, 317 71st St., Miami Beach, FL 33141.

abe laeser said...

I will mostly miss David because of the week we spent on a recruiting trip. He showed a kindness and concern for others that he could hardly express as a gang and narcotics prosecutor.

We spent a great deal of down time speaking about his family and the things that were truly important to him. I learned more about the soul of this fine man than I ever could at the office.

It was obvious that David was a most decent person who was a prosecutor for only one reason: he cared.

Scott Saul said...

I battled with David many times. He was a very worthy adversary, tough as nails but always professional and the tax payers were very well served. Such a sad loss. Passing away at 46...really puts things in perspective.

THE PONY EXPRESS

2012-01-31T17:23:00.000-05:00

11:35 PM: Our Miami Criminal Defense Attorney (MCDA) leans over in bed and picks up his iPhone and says "Siri wake me up tomorrow at 6:30." Siri responds affirmatively.
6:20 AM. MCDA's coffee maker, having been programed, grinds a set of beans and begins to brew coffee.
6:30 AM. MCDA wakes up. He reaches over to his iPad on the night stand and checks his email account, scans his Twitter feed and looks at the headiness of the NY Times on line.
7:45 AM: MCDA's GPS in his car alerts him to an accident on US 1 and recommends he turn off US 1 and proposes a route through Coconut Grove to I-95 and the courthouse.
8:33 AM. Once at the courthouse parking lot, MCDA reviews his daily calendar on his iPad and then looks through some legal papers that have been scanned into a file. He logs on to Google and looks at a client's file he has stored in Google docs.
9:27 AM. After an easy morning in court, MCDA heads to his office. On the way he uses the bluetooth cellphone connection in his car to return a few client phone calls.
10:11 AM. MCDA arrives at his office and picks up the mail.
There are a stack of twenty two court notices that have been mailed to his office. 21st century technology stopped dead in its tracks courtesy of the Miami Dade Clerk's Office.

Welcome to the practice of criminal law in Miami circa 2012. When it comes to schedules and calendars and notices from the clerk, there is not much difference in the practice of law today from 1982- thirty years ago.
Thirty years ago you didn't have a cell phone or a beeper. Nothing about your TV was flat if it was working. The word "Internet" didn't exist in most dictionaries (neither did Al Gore ). If you were sick you didn't get a CAT scan. An X-ray sufficed. Look how far we've come (Newt Gingrich excepted).
But what happened to the Dade County Clerk's Office? It's as if some evil villain from Star Trek has frozen the clerk's office just as it was in 1982.
How many of you would sign up to receive emails from the clerk's office as an official court notice? How much money would that save in paper and postage? What if you could add your client's email address as well? But who's going to explain to Harvey Ruvin what an email is?

Here's a comment we received the other day:
Anonymous said...

E-filing? What's that? Oh yeah, that's the thing they do in Broward.
What Brown should be ashamed of is that court notices for criminal are actually MAILED to attorneys. Mailed- like they did in the 1940's
Here's an idea- and stick with me on this. The county buys a Commodore 64 computer off of ebay. They buy a copy of Windows 95 and a copy of Adobe 7.0 from 2006. They hire a computer programmer from any of about 36 technical schools in Miami or even from a local university. The computer programmer programs the above mentioned computer to print the court notice to electronic format. They then take the electronic format notice and they send it via email to the attorney. Voila, no more paper notices being mailed out by the thousands.
My receptionist is 17 and even she asks why the court mails a court notice to me for a date I've known about for three months. Or the infamous Notice of Cancellation postcard which usually arrives after the cancelled date. There's more taxpayer paid technology in the Marlins' stadium locker rooms than there is at the Clerk's office.
Okay, I'm out. Judge Brown and I gotta go buy some carbon paper at Zayre's.

Rumpole notes: There's more truth to that comment than humor.

See You In Court.

2012-01-30T01:35:00.010-05:00

THE CAPTAIN REPORTS:

WELCOME WELCOME TO THE REGJB ....

So, you may be noticing some new faces and some old faces around the building this week. Lots of boxes moving in and moving out. Can't find a Judge?

Welcome back Judge Victoria Sigler. You can find her in courtroom 4-8; she took over Judge Cueto's division.

Welcome back Judge William Thomas. You can find him in courtroom 4-2. He took over Judge Zabel's division.

Welcome back Judge John Schlesinger. You can find him in courtroom 6-4. He took over Judge Trawick's division.

Welcome for the first time Judge Valerie Manno-Schurr. You can find her in courtroom 2-8. She took over Judge Firtel's division. If any of you know anything about Judge Manno-Schurr please share your knowledge with our readers. She comes from Civil. She knows nothing about criminal. She has never sentenced a criminal defendant - ever. (She did shadow Judge Firtel for a few calendars). Provide her with some case law; write a legal memorandum; give her some guidance.

Welcome for the first time (sort of) to Judge Samantha Ruiz-Cohen. You can find her in courtroom 2-4. She takes over Judge Tinkler Mendez' division.

Other moves:

Judge Rosa Rodriguez can now be found in courtroom 3-2. She takes over Judge Ward's ROCourt division.

Judge Tinkler Mendez can now be found in courtroom 7-2. She takes over Judge Scola's Back Up division.

Judge Firtel can now be found in courtroom 4-6. He takes over Judge Rodriguez' Back Up division.

AND LAST, BUT CERTAINLY NOT LEAST, WELCOME BACK ONE OF THE BEST JA'S THE REGJB HAS EVER KNOWN.

Welcome back to Diana Petitto. She was Judge Pineiro's JA during his years on the bench. After he passed away, she joined Judge Manno Schurr in civil. She re-joins the REGJB family. Please drop by chambers in Room 223 and say hello to Diana. She would love to see all of you.

CAPTAIN OUT .....

THE UN DEAD

2012-01-29T10:36:00.000-05:00

A few thoughts on Florida's upcoming primary:

Newt Gingrich is a vampire. He is the un dead. He cannot be killed without a wooden stake though his heart (or a few more steaks from the Palm- Newt's getting portly) and getting beat in Florida, which is a probability come Tuesday, will not do it.

After the Florida primary 10% of the delegates will be chosen. Up coming primaries include Alabama, Georgia, Missouri, Tennessee, Louisiana, and Texas. All southern states and all states that The Vampire Gingrich will do well in.

Note to Mitt: If you ignore Newt again after beating him in Florida, he will arise at night and suck the blood from your campaign. Again.

THE SUPER BOWL.

The Giants being a 3 point underdog in this super bowl is like someone saying to you in 1999 "You know, Apple might be a good stock to buy a few thousand shares of." (October 1999- $75.00 a share.)

We are reminded of the best super bowl score we ever made: the famous 1979 line.
The Steelers were back in the super bowl for the third time. They opened at 2 1/2 point favourites and the money pored in (ours included.) The line went to 4 and then 5 1/2 before settling at 4 at kick off.
The Steelers won 35-31. Those who had the Steelers -2 1/2 won. Those who had the Cowboys + 5 1/2 won. Those who had ether the Steelers or the Cowboys at 4 pushed and got their money back. It was our first five figure profit from a bet (we had the Steelers - 2 1/2 and the Cowboys +5, which is called "a middle"). The only people who lost money were the books.

We don't know if this is a game to middle. We like the Giants, no points, and take the money odds (+120) meaning bet ten bucks and win twelve (only in America!).

We'll keep you updated about our thoughts of securing your retirement with this super bowl, including our exclusive lock on the coin flip.

Coming this week: More about electronic filing, or "Joel Brown, Harvey Ruvin, and the revival of the Pony Express."

Welcome to the 21st Century

2012-01-28T09:01:00.000-05:00

Good Saturday morning. Before we begin, a little business:

There are two Circuit Court Criminal Judges designated as the emergency judges for this weekend: Samantha Ruiz Cohen and Vicki Brennan. Will Thomas has the Circuit Court Civil duty. We have been assured that callers will be treated in a courteous manner and all calls will be promptly returned.

The inside rumor is that the Court Administrators are considering adding a customer loyalty program: every time you get an emergency order signed on the weekend you will get a loyalty card stamped. Five stamps entitle the customer to a free cup of coffee at Au Bon Pain.

Also being considered is outsourcing the entire operation to India: "Hello, this is Pandhari, how may I be of assistance to you this emergency weekend?"

We've done a pretty through search of the Federalist Papers and we're pretty sure the founders didn't want anyone becoming president whose name was Mitt. It falls under the writings about avoiding embarrassing the presidency to foreign nations. But then again if that was true, how do we explain eight years of W?

State Attorney Mike Satz in Broward has a challenger: Chris Mancini.
Let the "anyone but Satz" campaign begin!

Speaking of Broweird, they are way ahead of Dade in implementing E-filing. What an embarrassment for our circuit. What can Brown do for you?

We guess this idea is probably too good to be implemented, but the Feds really got the e-filing system right and could someone explain to us why Florida couldn't have bought the whole system and implemented it State wide? Or is Florida hearing for as many different e-filing systems as there are counties?

Something tells us the Florida court system will be dragged kicking and screaming into the 21st century. Especially since as late as 1998 the system seemed so comfortable with living in the 19th century.

Enjoy your weekend.

EMERGENCY!

2012-01-25T15:39:00.002-05:00

Here is the situation: You are an attorney and have a client ordered released on house arrest a few days before Christmas. It is now Christmas Eve and your client is not out. Corrections has made some sort of mistake (as shocking as that may seem. By the way, Dade Corrections confirms the bond for Al Capone is almost processed and he should be released shortly.) What do you do? What CAN you do?

You can call the on duty emergency Judge for help. The Eleventh Judicial Circuit web site maintains a list of the emergency on duty judges for the criminal and civil and family divisions (although for the life of us we cannot imagine what emergency a civil lawyer could have- "Judge, the bank has short changed us $1.67 on the interest on the judgment and we need that fixed before Monday." ? Whatever.)

One such lawyer had such a problem this past christmas eve. He did not get satisfaction from the on duty judge for criminal court. Indeed, he did not get a call back although he left several messages. Perplexed that the on duty criminal judge would not return his call, the attorney -thinking that the duty judge's phone must not be working- called the on duty civil judge. Enter Judge Gil Freeman who saved the day for the attorney and his client. She was by all accounts understanding, courteous, professional, and helpful to an attorney almost out of options.

Here is the letter which obviously lists the criminal court judge in question. But before you read it, try and guess who was less than helpful in this situation (including the allegation that he hung up on the attorney when he finally picked up the phone once he was explained what the emergency was.)

(Hat tip to South Florida Lawyers for
the letter. )

Hint:

“This rudeness is a sauce to his good wit,
Which gives men stomach to digest his words
With better appetite.”

William Shakespeare, Julius Caesar.

Hirsch, M.complaint.adm.Judge

STATE OF THE UNION

2012-01-24T20:02:00.000-05:00

STATE OF THE UNION:

We'll live blog for a bit during the state of the union address. So feel free to post your comments which will go up just about instantaneously.

STATE OF THE STATE:
We think we have to side with the critics of the Captain's last post. From what we know, Mr. Labora is Hispanic and his decision to announce to run as Alex Jimenez Labora is no real problem for us. People are entitled to run for office in a manner in which their ethnicity is reflected in their name. The problem arises with individuals who co-opt the names of their spouse or long removed family members in order to capitalize on perceived ethnic advantages that they're not otherwise entitled to take advantage of.

The fact of the matter is that an individual's ethnicity means nothing regarding their intellectual ability to perform an elected office. However, to the extent that the experience of being a member of a minority may help that individual in understanding the minorities that they may be required to judge or otherwise render a decision about, a person's cultural experience is just something that cannot be separated from the person.

This is a slippery slope. In the end we would prefer a society where a person is judged by the content of their character rather than the color of their skin. MLK knew a thing or two.

Go ahead and live blog- the comment moderation is off for a bit.

ELECTION CENTRAL: SANTOVENIA V. LABORA

2012-01-24T00:10:00.014-05:00

THE CAPTAIN REPORTS:

Election Central .....

Circuit Court Group 47. Maria de Jesus Santovenia now has an opponent.

An Attorney using the name ALEX JIMENEZ LABORA has filed to run against Ms. Santovenia for the open Circuit Court seat.

BUT, HOUSTON WE HAVE A PROBLEM .........

There is no Alex Jimenez Labora that is licensed by The Florida Bar to practice law in the State of Florida.***

The Florida Bar does list an Alexander J. Labora as an attorney who has been practicing law in Florida for 18 years. (He also happens to be married to one Judge Deborah White Labora).

Now, suffice it to say that both Horace and I have always been big supporters of Judge Deborah White Labora and the Drug Court Program on this BLOG. But, fair is fair. And in the past, when someone has filed to run for Judge using a name different than the one they are licensed under, and when that different name just happens to be an Hispanic name, we must call Mr. Labora out on this.

***We checked at SunBiz.org for the name Alex Jimenez Labora and we were only able to find an Alexander J. Labora listed as an RA and/or an Officer in three different corporations. We also checked Fictitious Names, Limited Liability and General Partnerships. We did find one listing for an Alexander Jimenez PA that was formed in 2008 but the addresses do not appear to match up to Mr. Labora. Mr. Labora does state on The Florida Bar web site that his firm name is Alex Jimenez Labora, but there are no corporations or fictitious names found searching "Alex Jimenez Labora".

Mr. Labora specializes in foreclosure defense, bankruptcy, commercial transactions, personal injury and probate. He went to school in Mexico at Universidad IberoAmericana graduating with a chemical engineering degree in 1979. He furthered his education with an MBA obtained in 1983 at the Wharton's School of Business at the Univ. of Penn. He then went to law school at the "U" and got his JD in 1992. He has been a Hearing Officer in the 11th Judicial Circuit since 2010.

For the record, there are now four contested Circuit Court races. Also, there are currently four contested County Court races. The only non-incumbent who has yet to draw a challenger is County Court candidate Tanya Brinkley in Group 28.

JUDICIAL APPOINTMENTS UPDATE:

We are waiting to hear from Governor Scott on the replacment for Judge Scola.

The JNC sent six names up on December 16, 2011 and the Governor has 60 days. Those names are:

Miguel de la O
Richard Hersch
Alan Sackrin
Rodney Smith
Deborah White-Labora
Bonnie Riley

The JNC is accepting applications for the following open seats:

County Court - the seat of Norma Lindsey (she was elevated to Circuit); application deadline is January 30, 2012

Circuit Court - the seat of Julio Jimenez (he passed away last week); application deadline is February 16, 2012.

Captain Out .....

THE EYES OF THE NATION

2012-01-23T05:05:00.004-05:00

The traveling circus called the Republican Primary (Motto: "Did you realize Obama is black??") has moved to sunny Florida. The eyes of the nation are upon us. What to do? What to do?

We Miamians know what to do when the eyes of the nation are upon us.

Lets start with a good old fashioned MIAMI RIOT!!

We did it for the 1989 super bowl and for that last international conference of some sort. Lets have a riot!

What else? Well remember, this is the state that had a former supreme court justice indicted for drug trafficking. And then he jumped bond!

That's right, all you wet behind the ears young ASAs from Backwater, PA and you idealistic PDs from Hicktown, Indiana, we had a supreme court justice who trafficked in Marijuana for a little income supplement. (FYI: the name of the justice and the case won't come up in a Google search. But it's a great trivia question: who was it?)

What else? Well perhaps one of our senators can reveal he's a transvestite on the weekend. Nah- this is Florida, we need something really kooky.

Well, we'll all just have to wait and see. But be assured of this: our State's proud history of doing something absolutely, stunningly, embarrassing and stupid ensures that we will not drop the ball when the nation is watching.

See You In Court. Watching and waiting. This ought to be good.

THE BEST

2012-01-20T18:35:00.001-05:00

UPDATE: Saturday night at 6pm, our prediction for the South Carolina Primary: Newt Gingrich 40%; Mitt Romney: 29%, Ron Paul: 15%; Rick Santorum: 14%.
You read it here first.
FYI: For you Paul supporters here in Florida, you will be disappointed as your candidate will not be on the air here at all, and will spend very little time in the state. Florida is a winner-takes-all primary for its 50 delegates, and the enrollment procedure which doesn't allow independents to register vote in the Republican primary at the last moment make the contest a non-starter for congressman Paul.

It's mid-January and a young Floridian's thoughts turn to......

PIZZA!

Why not? We've done posts on the best bar-be-que, so why not a conversation on the best pizza in Miami?

The conversation starts with two: Anthony's Coal Fired, which has several outlets in Dade and Broward (and serving a pie to those lunkheads north go the border is a definite no-no in our eyes) and Steve's Pizza at 12101 Biscayne Boulevard- in North Miami on US 1 next to the Home Depot.

Anthony's Coal Fired has that coal fired oven smoky taste. The sauce and crust meld nicely and there are several great toppers that make the pizza sing. Our favorite it to have them put the Eggplant Marino on top of the pizza. Anthony's also has great chicken wings and a winning salad. You can catch us at the one just south of Dadeland on US1.

Traveling north on US1 takes you to Steve's Pizza, who has been around since it was battling "My Pi" in South Miami for the title of the best pizza in South Florida. At Steve's it's all about the sauce and their secret ingredient, which we strongly suspect is a large dose of sugar. The sauce makes the pizza and we've never had a bad slice. Steve's is a small pizza joint, serving slices and pies for the Jockey Club crowd nearby. There's not much ambiance, but then you don't need much when all you want are a few good slices.

Honourable mention: Hanging out on Coral Way just off of Brickell avenue, and close enough to the REGJB to dash over for lunch, is Tutu Pizza, the pizza place cousin of Tutu Pasta which is right down the block. Tutu pizza is all about being thin. There is a coal fired oven that dominates the interior of the restaurant. The pizza is thin and crispy with a nice dose of cheese melting around a sauce that is much lighter than that from Steve's or Anthony's, giving the slice a nice warm orange glow. The crust is nicely blackened with the coal fired smoky finish. Every pie comes with a small pile of fresh basil to sprinkle on your slice. You could do a lot worse for lunch after a long morning in court.

MOVING ON

2012-01-18T21:58:00.000-05:00

Life is for the living. No matter how hard it is sometimes to move forward after a terrible loss, we have no choice. We have to breathe in and out and put one foot forward of the other and move and live our life.

We joined the great Wiki web black out. Take a look in the upper left hand corner of the blog.

DOM represented himself on a traffic ticket at the REGJB the other day.
Welcome him home when he gets out tomorrow.

A SECOND CHANCE

The supreme court gave an inmate on Alabama's death row a second chance to appeal the denial of his motion for post conviction relief. You will recall that the inmate was represented by lawyers from Sullivan and Cromwell who left the firm without telling their client. When the clerk of the court mailed the decision denying the motion the notice was returned to the clerk's office unopened and the time to appeal subsequently expired.

By a vote of 7-2 Justice Ginsberg wrote that “In these circumstances, no just system would lay the default at Maples’s death-cell door.”
The error was so compelling that even Judge Alito concurred in the result. Of course Judges Thomas and Scalia (despite his unearned reputation as a friend of defendants) dissented in the decision.
The NY TImes article is here. The decision in Maples v. Thomas is here.

See You In Court.

JUDGE JULIO JIMENEZ

2012-01-15T21:07:00.004-05:00

Update: Sorry we did not get this up sooner. There will be a memorial service for Judge Jimenez on Wednesday January 18, 2012 at 12:30 PM at Church of the Little Flower, 2711 Indian Mound Trail, Coral Gables, Fl. Mass will be celebrated.

He was Sy Gaer's law partner, which means he had a connection to the roots of the REGJB. He was a defense attorney, a trial lawyer, a judge, and an all around good guy, and we are sad to report that Julio Jimenez passed away on Sunday. Many of you know he was sick, battling liver cancer. However, Julio Jimenez lived long enough to swear his son in as a member of the Florida Bar this past Friday. There's not much we can add to something as poignant as that.

He will be missed.

Here's a fun post we did on a Judge Jimenez battle with the SAO over PTI.

UPDATE:
Judge Julio Jimenez's Memorial Service will be on Tuesday, January 17, 2012, from 5 pm to 10 pm at Maspons funeral home at 3500 SW 8 Street.

Here is the Herald's obit.

HUNGER

2012-01-14T21:31:00.001-05:00

Against our better judgment, after the two month fiasco of the Game Of Thrones series, we started Hunger Games. And we have to admit it's pretty darn good.

Anybody know why the JAA Broward blog has not been posting? When something like that happens in Broward, we suspect nefarious means afoot.

What makes DOM go "yikes!" ?. When a member of the US Attorney in Miami's staff is indicted for trafficking in oxycodone. His blog has all the yikey details.

Coach Jeff Fisher shined the Fins for St. Louis of all places.

DRUG COURT:
Several months ago we published the announcement that Judge White-Labora would be leaving drug court in the new year. What we neglected to publish was the change in that decision. We are happy to let everyone know that the powers that be changed their minds and Judge White-Labora will be in drug court through the end of 2012. And if someone could explain the reason why she has not yet been elevated to circuit court, we'd like to know. Governor Scott has actually done a pretty good job with his appointments, but the failure to elevate Judge White-Labora is one mistake he needs to fix.

Monday is a holiday.
See you Tuesday.

THE GATES ARE OPEN

2012-01-13T08:18:00.002-05:00

Outgoing Mississippi Governor and putative candidiate for president Haley Barbour opened the gates of the prisons in Mississippi and pardoned a bunch of people. Barbour granted conditional and unconditional pardons.

Rumpole says: Our number one complaint against the american justice system is the length of sentences. Our second complaint is the utter lack of hope any inmate has for a reduction of his/her sentence. Rehabilitation for those serving ten or twenty years or beyond is meaningless to an inmate who has little incentive to anything. The liberal use of pardons for those who earn it is a very good start.

Just before the new year the Becker-Posner blog tackled the question of whether America imprisons too many of its citizens. It's worth a read. From Judge Posner's post:
Some statistics: the incarceration rate had been 118 per 100,000 in 1950, and actually fell in 1972 to 93 per 100,00. By 2000 it had reached 469 and only since the advent of the economic crisis has it begun to decline as states try to reduce expenditures. Between 1950 and 2000 the white imprisonment rate increased by 184 percent and the black imprisonment rate by 355 percent; today 40 percent of prison and jail inmates are black, although blacks are only 13 percent of the overall population. Even though the U.S. crime rate fell by a third in the 1990s (and by two-thirds in many large cities)— the murder rate by more than 40 percent—the inmate population continued growing during this period, an increase that cannot be explained by population growth, since the population grew by much less than a third in the 1990s.

TRISCADECAPHOBIA

Today is Friday the 13th. Did you know the original plans for the REGIB included thirteen floors? *
The number 13 is the sixth prime number. It is also a fibonacci number. Thirteen turns are required to make a hangman's noose. And there were thirteen disciples at the last supper. Dan Marino wore number thirteen as did Shaq in the 1996 olympics.

Roy Black on the use of snitches and the federal cooperation scheme.

Anybody in trial on anything good?

Cold front coming. It's already hit Buffalo, Pittsburgh and Philly. Meanwhile its a toasty sixty in Denver and much of the midwest.

See You In Court.

*Not really, but it sounds interesting.

MITT IS IT v 2.0

2012-01-10T20:44:00.000-05:00

Here's a headline you won't see in November: "Mitt Wins!"

Romney will win the New Hampshire primary tonight.
Ron Paul is second, with Henry Cabot Lodge, Harold Stassen and others bringing up the rear.

JUVENILE JUSTICE?

In answer to a statement in the comments on the previous post that no juvenile in the US had ever been executed for a crime, we did a quick search and were astounded to see that NINE...count em...NINE juveniles were executed from 2000 to 2005 when the supreme court (Motto: "Better late than never") put an end to the madness. But up until 2005 the US proudly stood with Iran, North Korea and China as the only countries who taught those rascally kids a lesson they would never forget.

NEW BLOGGER
Keep your eyes open for our new guest blogger who, like El Capitan, has been awarded unfettered blogging privileges. Membership has its rewards.

PRIVACY

There was some chatter across the legal blogs about Mitt Romney indirectly attacking the decision in Griswold v. Connecticut which is credited with establishing the "right to privacy." Griswold was about the ability to buy condoms. But in a much larger sense Griswold more than any other case highlights the problems with constitutional analysis and illustrates why objectivism as applied to constitutional law is an excellent lens.

Justice Douglas found a right to privacy in emanations from a "penumbra" from the bill of rights. A penumbra is a region where some or all of the light is obscured. When applied to constitutional analysis, finding a right emanating from a penumbra is another way of a judge saying "the facts of this case disturb me enough to invent something to fix the result and skewer the decision to a result that I personally want regardless of what the law is."

There is no right to privacy in the constitution. If you ask us personally if there should be, the answer would be an unequivocal "yes!". And we approve of the "result" in Griswold. But the the method to reach that result is dangerous.

No other right has ever been found lurking in the elusive penumbra since Justice Douglas's remarkable discovery. But what if Thomas and Roberts and Scalia and Alito can convince one of their brethren that they have "discovered" the right of a fetus not to be aborted lurking within a penumbra of the constitution? How about if, after careful scrutiny, they found that right just out of common eyesight and lurking within the penumbra of the right to "life, liberty and the pursuit of happiness"? How wonderful would the analysis of Griswold look to those who otherwise celebrate the discovery of the right to privacy?

Our point is that when you reach the upper most echelon of constitutional analysis, the method of arriving at the result (the philosophy if you will) is more important than the result itself.

See You In Court.

ANOTHER DNA EXONERATION

2012-01-08T09:07:00.001-05:00

Another Illinois inmate freed by DNA.

NY Times here.

The Lake County state’s attorney, Michael Waller, in a statement defended his office’s prosecution of Mr. Rivera, whose case was featured in an article in The New York Times Magazine. “I am mindful that for Mr. Rivera and some others, this decision will be viewed as too late in coming,” Mr. Waller said. Though there was no physical evidence linking Mr. Rivera to the crime, he was convicted of raping and murdering the baby sitter, Holly Staker, based largely on his confession. In 2005, DNA testing determined that Mr. Rivera was not the source of semen found inside Holly, and he was awarded a new trial, his third.

Rumpole says: But innocent people don't confess, right?

SLAPPY'D AROUND

2012-01-05T21:48:00.001-05:00

Judge Juan Ramirez, formerly head honcho at the 3rd DCA, has himself a nice little blog.

called Florida Law Update. We were perusing it the other day and stumbled upon our topic for the first post of 2012.

As the new year begins, most trial lawyers (but not us) usually make some sort of misbegotten (read: drunken) resolution to try more cases. Therefore, we proudly present The JBB's first Litigation Skills Seminar of 2012 ( (c) Rumpole 2012 most rights reserved, some just tossed aside cavalierly).

Todays topic: PEREMPTORY CHALLENGES 201.

Melbourne v. State, 679 So.2d 759 (Fla. 1996) is our starting point.

When one side strikes a juror and the other side objects, Melbourne requires the court to conduct a three step analysis. Practice tip #1: If you have made the strike, remind the judge that peremptory challenges are presumed to be exercised in a nondiscriminatory manner (except in some northern counties of Florida where the courthouses proudly fly the confederate flag and the judge swearing you in as a new lawyer requires you to whistle Dixie) and the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination. Put another way- the burden never shifts to the person who made the strike, although some explanation of the strike is required.

Step one of Melbourne: A request by the party challenging the strike for the party making the strike to state a race neutral reason. Step one has three parts: he party challenging the strike must a) make a timely objection and b) show that the venire member is a member of a distinct racial group and c) ask the court the request that the other party provide a race neutral reason for the strike.

(*pop*) (that sound you just heard was the can of worms being opened.)

Part of our focus today is on the second clause the first step of the Melbourne dance: what is a distinct racial group? Lets talk a look at State v. Alen, 616 So.2d 452 (Fla. 1993).

Alen pre-dates the "distinct racial group" vernacular of Melbourne and calls it a "cognizable class". And what is a CC? Why it's "an identifiable group in the community ...distinguished from the larger community by an internal cohesiveness of attitudes, ideas, or experiences that may not be adequately represented by other segments of society."

Longtime readers of the blog know what is coming next: yes, the Florida Supreme Court in Alen did create a definition that by all objective analysis makes "Judges" a "distinct racial group." So go ahead and hum a refrain of "we shall overcome" and then continue reading.

What Alen tried to deal with was the question of who is a member of a distinct racial group? Is Rose Schwartz-Diaz, a jewish woman born and raised in the Bronx and who comes to Miami and marries Javier Diaz, a Hispanic? No. Alen says "Although a person's naive language and surname may be used by a trial judge in determining weather a potential juror can be classified as hispanic, those characteristics are not strictly dispositive."

Or as his honor Milt Hirsch might take the opportunity to say "Would not a Rose by any other name...drink a Materva and eat Arroz Con Pollo if properly romanced by the right latin fella?"

Fast forward to Smith v. State, 59 So.3d 1107 (Fla. 2011). That vexing question of figuring out who is who had not been solved completely. The Florida Supreme Court blamed the 3rd, which originally decided Smith and certified a conflict with Alen: "The Third District's opinion, which does not require that there be a threshold demonstration that the juror was a member of a protected class, has the potential to undermine (civilization and all we hold dear?) the very purpose for the protections required to prevent invidious discrimination in jury..."

selection.

So Smith instructs Judges to turn to potential jurors and say "Madam, are you now or have you ever been Hispanic?"

We end our lesson with Judge Colodny and Garcia v. State. When you don't follow Melbourne precisely, things go bad fast. The actual decision in Garcia turns on the court's failure to follow the third step of Melbourne, but for our purposes the failure to follow the first two steps are illustrative of what needs to be done.

In Garcia, the defense struck a juror . The State objected: "We would ask for a race neutral reason" and without the state showing that the juror was a member of a distinct racial group, (step 1-B) and without the defense waiting for the court to ask for an explanation, the defense immediately proffered a race neutral reason: prior jury service, thereby waiving any appellate challenge to the court's failure to dance the Melbourne's first two steps properly.

The second step of Melbourne requires the court to ask the proponent of the strike to provide a race neutral reasons. Things were hopping during voice dire that day in Judge Colodny's Courtroom, and as the record makes clear all the state did for the first step was make a timely objection. From that point matters proceed swiftly and not according to Melbourne, which clearly states as follows:

Step one: a) Object cha cha cha...b) show the potential juror is a member of a distinct racial group cha cha cha...c) ask the court to ask opposing counsel to proffer a race neutral reason cha cha cha...

and then...dip and twirl and spin and twist and proceed to step two:

the proponent of the strike gives a race neutral reason cha cha cha like

"He's a Cub fan" or "he once ate a hot dog in browierd" or "he stays through the second half at Heat games." etc.

You see, to be a good trial lawyer, you need some rhythm.

CLE crédit will be applied for. Stay tuned.

See You In Court.

Charlie Johnson has an opponent

2012-01-03T23:31:00.004-05:00

THE CAPTAIN REPORTS:

BREAKING NEWS .... IT'S BACHMAN ..... NOT

REAL BREAKING NEWS - CHARLIE JOHNSON HAS AN OPPONENT ......

COUNTY COURT UPDATE:

Group 39:

Charles "Charlie" Kenneth Johnson (Incumbent)
vs.
Enrique Lazaro Yabor

This afternoon, attorney Enrique "Rick" Yabor filed to run against Judge Johnson. Mr. Yabor has been an attorney for 12 years. According to his website, he was an ASA and tried over 200 trials. He specializes in: Business Law & Litigation, Real Estate Litigation, Construction Contracts and Litigation, Bankruptcy, Family Law, Employment Litigation, and White-Collar Crimes. (www.yaborlaw.com ).

Judge Johnson was appointed to the bench as one of Governor Charlie Crist's last appointments in December of 2010 after serving as an ASA for 22 years. Judge Johnson has smacked down $140k of his own money as a loan to the campaign.

Group 27:

Ivonne Cuesta
vs.
Jacci Suzan Seskin

In late December, ASA Jacci Seskin filed to run against APD Ivonne Cuesta. Mrs. Seskin had a previous career as a RN for 25 years before attending law school. She has been an attorney for eight years. She apparently worked at both the Public Defender's Office and now, the State Attorney's Office. Mrs. Seskin, who is married to a doctor, plucked down $150k of her own money as a loan to the campaign.

Ms. Cuesta has only $7,000 in her bank account (of which $5,200 is a loan to her campaign).

Group 20

Michelle Alvarez Barakat
vs.
Fleur Jeannine Lobree
vs.
William Pena Wells

I have previously posted on this race.

Group 28

Tanya Brinkley
vs.
Nobody

Ms. Brinkley was up against attorney John Rodriguez until he switched to Group 33.

Group 33

John Rodriguez
vs.
Nobody

Filing deadline still four months away. No changes in Circuit Court races.

CAPTAIN OUT ..............

WELCOME BACK

2012-01-02T21:25:00.002-05:00

The holidays are officially over (wait- we have a three day weekend coming up for MLK day in two weeks) and it's time to get back to work.

COLD SNAP

The low Tuesday morning could be in the high 40's as temperatures plunge Monday night with the wind whipping the wind chill (technically defined as something that happens to people stupid enough to live in the North East US) making it feel like 29-34 degrees.

And wait! Tuesday night will be colder!

Rumpole tip: Go to your AC and flip the little switch from "cool" to "heat" and set the temp to 70. Brew a hot cuppa and relax.

Miami! See it like a native.

IOWA RESULTS

Avoid the rush Monday night, we have the Republican Caucus (technically defined as "a meeting of a bunch of farmers and their families that are not representative of the nation and yet have undue influence on who we elect as a president" ) results now:

Mitt is it!

Ron Paul;

Rick Santorum;

Newt;

Rick Perry

Bachman Turner Overdrive/under achiever.

The Judges rotation takes effect next week. Can't tell your player without a scorecard and that's what we are, your unofficial REGJB scorecard.

Let us be the last to wish you a happy new year.

See You In Court.

LAST POST OF 2011

2011-12-31T16:45:00.004-05:00

We wanted to end the year on a good note, and not a sour one. Criticizing Judges is a wearisome and unfortunately necessary job of the preeminent blog that covers the legal scene of Miami. In other words, it's a dirty job but somebody's got to do it. Like bond hearings on New Years Day.

So Happy New Year!

2012 brings a new year loaded with special challenges. Clients will show up seeking help. Some will be in distress, some will need immediate help, and others will just need a confident, guiding hand.

Our wish for our blog readers is that 2012 brings you all the joy and success that you want and deserve.

We (meaning all of us who work in the REGJB) are truly blessed to be working in our chosen profession, using our talents to support our family and help those who need our skills.

Many of our fellow citizens suffered in 2011. They lost their jobs and their homes were endangered or lost. The news reports that millions more americans have given up hope of finding employment and are thus not counted in the unemployment statistics.

There are simple enjoyments in life that sometimes we need to be reminded of. The joy of working in a fulfilling job. The pleasure of using your training and skill. The simple comfort of being with family and knowing that they are similarly safe and happy.

Sometimes life throws curveballs at you and you lose things that are precious to you, like your health or your job or your loved ones. In those times we are comforted by this saying: "Tough times don't last, tough people do."

Here's hoping that 2012 is filled with those simple joys and pleasures that make life worth living. For those of you who have faced tough times- be tough and endure. Life will get better. For those of you lucky enough to have had a successful 2011, take time to remember that there is an element of luck and chance in life and be happy for the good fortune you have been blessed with.

See you in court in 2012.

UH, MILT, WHAT WERE YOU THINKING???

2011-12-30T12:15:00.006-05:00

THE CAPTAIN REPORTS:

UH, MILT, WHAT WERE YOU THINKING ??? .....

I was listening to the news Wednesday evening. The story was about two men charged with raping a pregnant woman at Johnson & Wales in North Miami.

The news report showed video of the Bond Hearing and the Judge was Milt Hirsch.

I heard Judge Hirsch ask more than one question that sounded way out of bounds.

Hirsch: Do you know who the alleged victim in the case in which you are charged is?

Defendant: No sir

Hirsch: You have no idea?

Defendant: No sir

......

At one point in the questioning, Hirsch asked the defendant WHERE WERE YOU ON DECEMBER 22 (the date of the alleged rape).?

He asked at least one other question that sounded totally inappropriate. (I tried to find the video from the newscast online, but was unable to locate it).

I cannot understand why Judge Hirsch would be posing a question that basically asks: Where were you on the date of a crime that you are alleged to have committed?

The Judge certainly has the authority to make decisions about the bond amount based on danger to the community and risk of flight. If the Judge wants to issue a Stay Away Order, he could have turned to the ASA and asked the victim's name and then entered an Order directing the defendant to stay away from that victim.

But to cross examine the defendant, (and that WAS the tone of the questioning), asking questions that would potentially incriminate the defendant, was totally out of line. Quite frankly, it appeared (both by his facial expressions and his tone of voice) that Hirsch was incredibly upset with what this defendant was being charged with. (The victim is eight months pregnant). Who wouldn't be?! But, Judge Hirsch's job description does not permit what I saw on that video Wednesday evening. He could have done what he needed to do without posing the questions that I heard him ask.

What's your take on this? Some of our readers have already chimed in:

4:25 writes: In response to the questions asked by Judge Hirsch, the Judge refused to issue a stay away order in the rape case because "the defendant doesnt know who the victim is"

8:48 wrote back: 4:25 Shame on you. You interfered with Captain's favorite past-time of pissing on Judge Hirsch. I assume that the Captain Judge would simply have issued the stay away order. Who cares if the defendant doesn't know who to stay away from.

And in response, was this entry:

To 8;48 , Judge Hirsch did not issue the stay away order because the sub told the judge (upon questioning) that he didn't know who he raped! Apparently that is a new standard in issuing stay away orders. You cant issue one to a sub who hasn't the freakin manners to ask his freakin vic their name.

And finally, this:

Didn't the prosecutor know the victim's name? They are the ones who tell the bond judge to issue a stay away order keeping the defendant away from whatever the name of the victim is.

Judge Hirsch has been getting very good reviews as he closes out his first year on the bench. It started a bit rocky when he issued that standing Order where even Rumpole himself had to use his online dictionary to figure out some of the words Hirsch wrote. The Judge also shook the GJB with his bold ruling on the constitutionality of FS 893.13, finding it facially violative of the Due Process Clause of the 14th Amendment to the US Constitution.

Next year is an even year, and that means election season. We look forward to 2012 and qualifying day as we watch with excitement all of the judicial match-ups that are formed for the end of summer election. We also have the "big one" in November, but we'll leave the blogging on that to our 538 guru Horace.

So, for now, we simply wish you the safest of holiday weekends and hope that 2012 is your best year yet. Happy New Year.

CAPTAIN OUT ......

LAST POST OF THE YEAR 2011?

2011-12-29T08:22:00.003-05:00

UPDATE: Go to the comments section and read El Capitan's comment. He has all the breaking news on the Hirsch/ bond hearing/stay away order contretemps.

Maybe it is, and maybe it's not. In any event, 2011 is rapidly drawing to a close.

Look back to December 2010. Did you accomplish all your goals for 2011?

We did not. We never do. And isn't that the point? To live is to continually strive to make yourself a better person. To love more, learn more, and (zen warning) be more.

Lets look at some of our predictions for 2011. Some panned out; some did not.

We predicted that there would be a natural disaster somewhere in the world which would in turn spark a man made disaster. And in fact that came true:

Just turn on your TV and you can't help but seeing Newt Gingrich's fat face everywhere. (Newt was the man made disaster, started by the natural disaster of Sarah Palin being relevant in our nation's life). (If you were thinking about the nuclear meltdown in Japan sparked by the Tsunami, we didn't predict that.)

We predicted the Dolphins would lose two games this year and be a lock to win the Super Bowl.*

For 2012 we confidently predict the following:

The Heat will have another disappointing season and will NOT win a championship. (Like shooting fish in a barrel folks, or appealing a decision from a broweird judge- just way tooo easy.)

In January 2013, the person taking the oath of office for President of the United States will have a wife named Michelle, two daughters and his first name will begin with a B. And it won't be close.

The economy will continue a slow improvement. Stocks will rise modestly.

Another Judge will have the guts and courage and integrity to admit they got their initial decision wrong, as did the Judge in Famous Fee Fiasco of 2011.

This Judge will be promptly snapped up by a large firm who quadruples their salary.

The talent drain on the circuit courts will sadly continue.

The Marlins won't be half bad. The stadium is super cool.

Judge Murphy will continue doing an outstanding job.

Ditto Judges Firtel, Soto, Sayfie, Lopez, Thornton, Bloom, Walsh, and Hirsch. For all the grief we give our robed readers, we as lawyers in Miami are truly lucky to have a core group of outstanding and dedicated judges. We don't say this often (because it gives us indigestion) but - THANK YOU!

Morning Joe will continue to be the best morning show on TV.

The Kindle will continue to be the only way to read, when you're not on your computer reading our blog.

Certain federal bloggers will continue their mighty struggle to be funny.

A certain state court blogger will continue to be quaintly amusing and relevant.

We wish you a Happy and Successful and Healthy 2012 and if you want to be amused, stay relevant and in the know, just keep clicking our blog and reading our posts.

See you in court in 2012.

* Of course we didn't. There's no amount of liquor in the world that would make us that loopy.

HIP HOP JUSTICE

2011-12-27T05:05:00.001-05:00

The NY Times confronts the issue of jury nullification, otherwise known as "just say No(t guilty)."

The Author, Paul Butler, is a former federal prosecutor, a professor of law at Georgetown, and the author of "Lets Get Free: A Hip Hop Theory of Justice."

The article starts:

IF you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.

Item: NYPD made 50,000 arrests last year just for possession of marijuana.

Item: Some states are seeking to take away the right to a trial by jury for drug possession because jurors are increasingly ignoring the law and issuing jury nullifications.

The next time some snotty 24 year old prosecutor seeks to have the court issue some misbegotten order prohibiting the defense from arguing that a juror is free to vote their conscience, remind the court that no less an authority (and great defense attorney) John Adams, said this: it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”

See You In Court.

PS Check out "when clients cry in court". Boo hoo hoo.

BOXING DAY 2011

2011-12-26T09:27:00.004-05:00

It's Boxing Day!

For those of you with pugilistic preferences, today is not your day. Put down your fists.

But if you are a citizen of the Realm, one who dwells in Her Majesty's Commonwealth, then today is the day to shop and save.

Much like the tradition of the colonies on the day after Thanksgiving, subjects of Her Majesty's Commonwealth queue up and get some goodies on sale. It's an official holiday in Canada, the UK, Scotland, Ireland, Australia, to name some of the countries in the civilized world that celebrate Boxing Day.

Speaking of England, we are closely following the condition of the Duke of Edinburgh who was hospitalized with chest pains late last week and underwent cardiac catheterization.

Prince Philip, HRH's Husband, is 90 years old and was otherwise in tip top condition, keeping up a schedule of over 400 appearances a year. Perhaps it is time to cut back a bit?

Courts in Miami are definitely closed today. Who's set for trial tomorrow? Who's going to trial? On the last week of the last year in the last century (1999 for our robed readers) we were in the third week of a trial that ended New Year's Eve. What's your Xmas/New Year's Eve trial story?

Unlike other blogs, we blog 24/365. *

See You In Court.

*We're not saying we don't take vacations, we're just saying we never close.

psatb/bbtrav/boxdy/R1-3.v2.3

CHRISTMAS 2011

2011-12-25T11:47:00.003-05:00

Fear not: for, behold, I bring you good tidings of great joy, which shall be to all people. For unto to you is born this day in the city of David a Savior, which is Christ the Lord.

Luke 2:10-12

The above picture is Da Vinci's Madonna of The Rocks or sometimes called The Virgin of the Rocks. The original painting is in the Louvre, while the charcoal sketch hangs in the London National Gallery of Art (our favourite museum bar none), along with a second painting. There is a controversy as to which painting came first, whether Da Vinici's assistants worked on the painting in the National Gallery, and whether Da Vinici was forced to alter the paintings. Wiki has a good article here on the paintings.

Merry Christmas.

XMAS EVE 2011

2011-12-24T07:55:00.005-05:00

NORAD TRACKS SANTA HERE.

We always make it a habit this time of year to re-read Stephen Ambrose's remarkable account of the 101st Airborne Division's defense of the town of Bastogne, Belgium, in December, 1944.

When Germany launched a surprise attack known as the Battle of the Bulge, all General Eisenhower had in reserves were the 82nd and 101st airborne divisions. Both were ordered into the battle. Trucked across France, the 101st marched into Bastogne to stop elite German Panzer divisions while other U.S. soldiers fled in panic. And stop them cold they did.

With nothing to rely on other than each other, the 101st (including the famous 506th PIR whose exploits at Bastogne were detailed in Ambrose's Band Of Brothers) took up front line positions in the woods of Bastogne, dug foxholes in the bitter cold (the coldest winter in Europe in almost 100 years) and once again held off the best troops and tanks of Germany with nothing more than their rifles and each other. Their story is a remarkable one. No men ever better exemplified the courage of the American solider.

Bastogne exemplified the tradition of American soldiers enduring more than was humanly possible and refusing to leave the line, even while injured, so long as their fellow solider- their brother in arms- was still fighting.

American soldiers don't march into combat in summer clothes in the dead of winter anymore. They don't dig foxholes in sub zero weather anymore, they don't endure horrific artillery barrages and they don't fight tanks with rifles while hobbling on frostbitten feet anymore.

But they still exhibit remarkable courage. They still go into war zones in foreign lands and fight despots and terrorists and put their lives on the line to protect our freedoms and liberate people they've never met.

Bastogne was a startling example of the mettle of the American solider. But it didn't start there and it doesn't end there. It continues today in places like Bagram, Kandahar, and Forward Operating Base Delaram, where today on Christmas Eve, the 3rd Battalion of the 4th Marine will - as they have done every day during eight combat rotations, get out of their tents and patrol a 2000 kilometer stretch of Afghanistan, putting their lives on the line for

their fellow Marine, and in a larger sense, for all of us.

Thank you just doesn't seem enough, but it's all we have.

Thank you and Merry Christmas, Happy Hanukkah, and whatever other holiday or tradition you may follow, we wish you the joyous peace of the season, and a happy and healthy, safe and prosperous New Year.

HR.

PRE XMAS

2011-12-22T09:24:00.005-05:00

UPDATE: THE SKY IS FALLING

We neglected to write that Sky Smith also had a client in the trial before Judge Scola and also succeeded in obtaining a full acquittal for his client.

We regret the omission.

The REGJB is still open Friday, but since a group of Judges are apparently making the decision, that could change at any moment.

Judge Robert Scola had his first federal trial verdict Wednesday. Congratulations to Michael Walsh and Charles White for securing the very first NGs before Judge Scola. Lets hope its a harbinger of things to come. Newt Gingrich was rumored to say that if a few more cases go against the government Judge Scola could be called on the carpet.

Should the courts close for the Holidays? Coming next week we have a point/counterpoint debate between a sitting judge and an attorney who runs a small firm.

Economic Outlook: Jobless claims came in today lower than expected today at 364,000. It's the lowest weekly claim in two years (since April 2008) and it's the third straight week that the number came in lower than expected. That means we should see another drop in the unemployment rate next month.

What this means: The economy is kicking into gear at just the last moment to help the President. We could see unemployment in the mid to low 8% range and if the number dips a toe into the 7.9% range over the fall of next year the Republicans could resurrect Lincoln or Teddy Roosevelt and still not be able to beat Obama.

On the flip side, the economy grew at a weak 1.8% in the third quarter and that's about .5% less than we need to sustain a jobs recovery.

Rumpole says: we are coming out of this unemployment/recession disaster very slowly and on the precipice of a double dip recession. This is a cliff hanger. Stay tuned.

Scott Rothstein hands up his former law partners Stuart Rosenfeldt and Russell Adler as being up to their lawyerly suspenders in his scheme. The Sun Sentinel reports here. Some Miami lawyers are part of the defense teams for Rothstein's former law partners who have not been indicted yet. Also getting caught up in the slime, former Broward Homicide Prosecutor Ken Padowitz, who was of counsel to the firm, shared some space, and drafted an opinion letter blessing the law suit funding scheme Rothstein was peddling. The lesson in all this is be careful who you share space with.

Miami Regional Counsel Gene Zenobi is no longer lonely, as the Governor made the following Regional Counsel Appointments across the state (all of which were due July 1, 2011, by the way)

RC4 (Broward and West Palm): Antony Ryan, a well respected Assistant Public Defender in West Palm Beach got the nod over RC4 henchwoman Shari Vrod, whose strong ties with RC4 current head Phillip Massa was probably her undoing.

RC2 (somewhere on the west coast) Ita Neymotin, who was a former RC2 employee and former Assistant Public Defender before running a law group, was picked to head her old office.

RC5 (somewhere north of RC4) Jeffrey Dean was re-appointed as the RC for the 5th region (motto: "Florida has 5 regions, and we're one of them!")

We will NOT be in court Friday, as we're heading out for Truckee and points west for the Holidays.

See You ....sometime in the New Year.

FRIDAY OFF... NEWT OFF HIS ROCKER...

2011-12-19T22:04:00.007-05:00

UPDATE: Sorry Virginia, there is no Santa Claus.

Court is OPEN ON FRIDAY. Merry Christmas- now get to work.

The Governor issued a reprieve today for State workers and as a result (State) court's in Miami will be closed (update- some readers say it ain't so. Is there a Santa Claus Judge Brown?) The JAA Blog has the machinations that the folks in Browierd are going through as they decide what to do.

Getting tough on CRIME JUDGES

This is what the Republican party has sunk to: with no more room left to increase penalties on crimes, Newt Gingrich, who is currently leading the race for the Republican presidential nomination, has opined that arresting federal judges might just be the right thing to do. Really.

Appearing Sunday on Face The Nation, Gingrich said Congress should compel federal judges to testify about any decision that the party in power disagrees with. Gingrich said he would send U.S Marshals to arrest federal judges if they did not come willingly to the Capital to testify. As Andrew Rosenthal pointed out in the NY Times, Marshals are tasked to protect the federal judiciary which gets hundreds of death threats a year.

Really Newt? Arrest Federal Judges if you don't like their decisions? What's next? Suspend Habeas Corpus? (Oh, wait, Scalia has already almost done that). National Identity Cards? Guilty until proven innocent? (Except in Texas, where that is already pretty much the case. Read this NY Times article on the 46h person exonerated based on DNA in Texas in the last ten years. In this case the defense is seeking to have the prosecutor investigated for withholding the evidence.)

And while you're at it President Newt, get rid of that pesky first amendment, shut down this blog, and declare this a nation of christians and throw all the muslims, jews, and japanese in internment camps. Now you've got the tea party's attention. Not to mention the religious right.

Listen closely. If the Republican party nominates this lunatic then they have lost their soul, they have lost all reason, and they will surely lose the election.

Anybody in trial? Let us know.

FEE FIASCO UPDATE:

If you check out our tweets on Monday you will see that during the day there was quite a bit of chatter on the FACDL Listserv that certain penurious ASA's are ringing up certain appellate attorneys to give them a piece of their mind (not that they can afford to give much more away) about "trashing" them in emails. Meanwhile the appellate attorney noted that when the ASA told Judge X during the hearing that the other appellate attorneys had all billed the cap of $2,000 in the case, one of the appellate lawyers was an assistant public defender, and the other billed and received about 10K.

Newt Gingrich got involved and called for the arrest of the appellate lawyer for doing a good job and "trying to free a convicted murderer."

See You In Court. We are announcing our availability to represent any member of the federal judiciary who gets called to Congress for Contempt of Newt.

HOLDAY CHEER

2011-12-18T09:34:00.003-05:00

A different take on law firm holiday parties from the popular if not avuncular

ANGRY GURL:

(who sent this comment in on the previous post)

Angry Gurl said...

So the firm I am of counsel with had their holiday party at the Epic. In these tough economic times I am certain they spent enough money to pay the salaries of three mid-level employees at the support staff level for a year. That's three families, six to 12 or so people who could have paid their mortgage and car loans and gotten health insurance for what these bloated buffoons blew in an orgy of gluttony in one night.

And believe me when I say gluttony. Women who are so obese that they can no longer perambulate and are forced to travel around on some electric hybrid wheel chair/scooter are sitting in line with piles of potato chips stacked on top of pasta in cream sauce and fried potatoes, friend chicken, and because they want to eat healthy, friend cauliflower and broccoli swimming in a some sweet brown sauce. And because they are so heavy that they can't walk, they have a second plate on their electric chair piled high with sweets, cakes, and of course since this is the holidays- christmas cookies.

And all the while their boss/enablers, who spend thousands every month on private gyms and personal trainers and tanning booths are standing to the side of the line smiling with their $25,000 in dental caps shinning brightly while they and their chic thin trophy wives who are 20 years younger then them encourage this herd of mooing cows to eat more and enjoy their generosity. Its like they're drug dealers getting junkies hooked for free.

Its a disgusting spectacle on so many levels, including fraud. The smiling bosses stand by and encourage their minions to have another glass of champagne. And their secretaries and clerks and their truck driving husbands wearing their only suit which stopped fitting them three years ago, are suitably impressed because the bottle says Moet, and they think they are drinking a $100 glass of champagne when in fact the 1990 Louis Roederer Cristal Brut remains in the back and not available to hoi poloi. Ditto with the "caviar" which is probably fish eggs from some local mercury filled bass plucked from the muck and slime of the Everglades, while the stuff from Russia is kept securely in the partner's dinning room.

And on and on it goes. The fraud, the food, the gluttony, the smiling bosses. I could only take an hour or so and I left sick to my stomach.

Saturday, December 17, 2011 9:16:00 PM

And then we received this comment in response:

Anonymous said...

AG,

Finally a post I can agree with. If you wish to see gluttony at its best, go to Disney World. Every 10th person is sitting in a motorized chair, eating a turkey leg, drinking a diet soda, eating ice cream, etc. It is even more disgusting to witness this spectacle when it is blistering hot out.

I have absolutely no issue with people eating themselves to death, but I do have a problem paying for it with higher insurance rates.

Sunday, December 18, 2011 7:38:00 AM

Rumpole says: ignoring for a minute her unique view of current life in Miami, AG raises a serious issue: people are out of work. They are scrapping by on unemployment cheques. They have no health insurance and sometimes they go hungry so their children can eat and sometimes even that doesn't happen. Should law firms or any big corporation be spending 50 thousand dollars on a year end party?

The answer is that it doesn't really matter. It's not the 50K that will save society. It's the trillion dollars of national treasury and thousands of lives ended because of wars started on faulty intelligence that put us in the desperate position we are in today. Today the last troops left Iraq. Nine years late Saddam Hussein is gone. Was it worth it?

Ask the Iraq war vet who can't feed his kids if it was worth it. It's not AG's office party that's the problem. It was Bush and Cheney and Rumsfeld's party that caused the problem.

See You In Court.

FEE FIASCO

2011-12-15T19:38:00.006-05:00

(spin the judicial wheel of fortune below and find out where your favourite robed reader will be in 2012.)

The story you about to read is true.

The names have been withheld because most of the players are pretty nice guys.

We saw the following on the FACDL Listserv:

I just had the displeasure of arguing what appears to be Judge X's first Makemson hearing in which I was seeking to recover more than the $2,000 cap for a felony appeal. I had 153 hours in this first degree murder (life sentence)/armed robbery case, in which the trial took a month and the record was 5,500 pages. At the statutory rate of $75 per hour, I was asking for $11,475, which compares to a fee of $76,500 from a client paying full freight. (Rumpole can't help but wonder, who is getting $500 simoleons an hour to do an appeal outside of the southern district of NYC?)

Judge X (who apparently just came over to criminal from family court), was swayed by (the ASA)'s shrill arguments that I should not have taken a case with a statutory cap and expected to get much more, and her representation (which was news to me) that the other co-defendants’ appellate attorneys accepted the $2,000 cap for their fees.

Long story short, Judge X awarded $6,000, or $39.22 per hour.

Be warned.

Post script: The trial Judge, who is one of the most respected Judges we have and who otherwise has a reputation for treating all attorneys fairly and with respect issued a sua sponte (Latin meaning literally "woops, I think I can fix that before anyone does anything like appeal me") order reconsidering his prior decision. We think this will turn out just fine for the appellate attorney.

The more important question was what in the name of Sam Hill was the State Attorney's Office doing sticking their nose into a private attorney's fee? This is a dangerous precedent. When a prosecutor starts having some say in how much a court appointed attorney gets paid, it's Katie bar the door for the zealous advocacy on behalf of a client. (nb- two more catch phrases and we will tie the record for one paragraph). We are not aware of any statutory authority that gives an ASA the right to be heard at a fee hearing. If this matter is NOT resolved to the attorney's satisfaction we urge the FACDL to file an amicus brief on the appeal on the issue of whether Ms. Pinocchio ASA gets to put her beak into the middle of a fee hearing.

Speaking of the FACDL, there was an FACDL/PD party today at the PDs office. Don't get too upset, we didn't get invited either. Plus the opportunity to socialize with Brian Tannebaum, Barry Wax, Scott Fingerhut and other former FACDL Miami presidents WITHOUT the benefit of alcohol was just something we found very easy to pass up. And for those of you worried that Joe George might swoop in and become the next Public Defender after firing the entire PDs office, as best we can determine, NO alcohol was present on state property.

What was announced at the Party was the coming Judicial Assignments for the new year. Yes, it's that time of year again when Judges Brown and Soto spin the Judicial Wheel of fortune and click clack click clack lets see where your favourite judge landed.

OUT OF CRIMINAL: Judges Trawick, Cuerto, Zabel. Fair thee well.

IN TO CRIMINAL: Jon Schlessinger (for Trawick) Vickie Sigler (for Cuerto) Will Thomas (for Zabel). Welcome to the party.

Other moves: Firtel leaves division for backup and Manno-Schurr comes to criminal and takes over his division. Tinkler-Mendez leaves division for backup and Samantha Ruiz-Cohen takes over her division.

Judge Rosa Rodriguez leaves backup (Firtel takes over) and goes to ROC around the clock court taking over for Judge Ward. Judge Jackie Scola leaves backup and Tinkler Mendez takes over her spot.

You just know that once the music stops some poor judge will be left standing without a chair and be sent to probate.

See You In Court where you can't tell the players without a program and there's no better place to get your program than right here on your favourite blog.

THE HAMMER HAS A HEART

2011-12-14T06:23:00.002-05:00

Please remember to bring a new, unwrapped toy on Wednesday or Thursday to the courthouse area. Or, bring it to the holiday party.

With the holiday season now in full swing FACDL is again joining hands with the Dade County Bar Association Homeless Outreach Committee to ensure that some of Miami's less fortunate children do not go without toys this year. Just as we did last year we will be setting up collection boxes on Wednesday in the REG Building to collect new, unwrapped toys that will be delivered to the families at the Champman Homeless Center in Miami. Through the efforts of Rick Freedman, and the assistance of Judge Yvonne Colodny, Carlos Martinez, Katherine Fernandez-Rundle, and the staff at Au Bon Pain, we arranged to have collections stations set up at Au Bon Pain restaurant on the first floor of the Justice Building, Judge Colodny's chambers in room 209, as well as both the State Attorney's Office, the Public Defender's Office.

Additionally, this year's FACDL Holiday party will be held on December 15th at the Miami-Dade Public Defender's Office. This year we are fortunate enough to have Administrative Judge Bertila Soto for what promises to be a very informative question and answer session. Just as last year, instead of charging an admission fee for this year's Holiday Party we are asking that attendees bring an unwrapped toy to be donated.

On December 21 at 6:00 pm there will be a holiday party at the Chapman Homeless Center where all the toys that have been collected will be handed out to the children. The Dade County Bar Association welcomes, and urges, all the FACDL membership to attend. We are hoping that all of our members will make a point to attend this great event and contribute to this worthy cause. We had a wonderful turnout last year and with everyone's help we can top it this year. Happy holidays to all.

Jude M. Faccidomo, Esquire
Vice President, FACDL-Miami

JUDGE ROBERTO PINERO:

The Captain Reports:

One Year Ago .....

Very quietly this weekend I was thinking of Roberto Pineiro. Believe it or not, it was just one year ago (December 9, 2011) that Judge Pineiro died of a stroke at the age of 56.

We miss Rob Pineiro and we pray that he is in peace. We hope that all of our new Judges that have been appointed to the bench in the past year will read and learn about Judge Pineiro. He would be someone that you would want to emulate during your time wearing the robe.

God bless Judge Roberto "Rob" Pineiro.

Captain Out .....

RUMPOLE says: we think about Judge Pinero often as we enter the REGJB. He was one of a kind.

TIMING IS EVERYTHING

2011-12-13T05:05:00.001-05:00

Life is all about timing.

Turn into one door on the spur of the moment to get a cup of coffee and bump into your future spouse. Decide at the last minute to forgo spending eleven bucks for a triple pumpkin spice latte, and save yourself a million bucks in alimony later on.

Stephen King writes in the afterword of his great new book 11/23/63 (no spoiler alert- this has nothing to do with the plot of the book) that if a stripper named Karen Carlin hadn't fallen behind on her rent and asked Jack Ruby for a $25.00 loan, Ruby, who had previously tried to get close enough to Oswald at the Dallas police station the day of the assassination would not have gone to the police station the next day because he assumed he had missed his chance and Oswald had been transferred to the Dallas County Jail. But the Western Union Ruby went to to wire the money was just a few blocks from the Police Station and Ruby, who often entertained Dallas cops at his club and was well known to them, wandered down to the police station intending to speak to some friends. But Oswald was just about to be transferred. And thanks to a stripper needing a quick loan, history changed again that day forever. Timing.

The Fins fired coach Tony Sporano today and timing was everything.

Sporano and the rest of the NFL awoke this morning to the firing today of Chiefs Coach Todd Haley. WIth the Chiefs suddenly the only team in the market for a coach, the Dolphins, knowing they were going to fire Sporano at the end of the season were now forced to act.

Sporano was allowed to hold his regularly scheduled 11:00 AM news conference. Timing. Then the media headed cross town to the Heat's 3pm conference. Timing. The Dolphins are on the road for the next two weeks, giving the interim coach a chance to get his feet wet without enduring a home town stadium of boos. Timing. With most of the media safely across town, the Dolphins called a news conference attended by some Haitian security guards and one lost insurance agent from Oswego named Hal and fired Sporano.

Timing.

See You In Court, and if you see us, its all about timing.

r4/oswego/sporano/truckee.psatb.

HOLD STILL, THIS WON'T HURT A BIT.

2011-12-12T04:46:00.002-05:00

Hunter shoots deer. No news. Dog shoots hunter. News. Herald has it here.

Dolphins win. News. Dolphins get blown out by Eagles. No news.

Its taken a while, but the chickens hatched by Schmerber v. California, 384 U.S. 757 (1966) are finally coming home to roost.

DUI mavens will tell you that in Schmerber, the US Supreme Court upheld the rights of states to forcibly extract blood from DUI suspects.

Now the WSJ reports that many states, including our own, have adopted or are about to adopt "no refusal" laws that allows the police to hold you down and jam a needle in your arm and extract your blood when you refuse to provide a breath sample in a DUI case.

The Wall Street Journal article states that Texas (Motto: "jus give me mah gun and screw the commie constitution crap") is leading the way.

No doubt Alito and Roberts and Thomas will uphold such a law. They never saw a criminal law they didn't like. But lets see what our friend Scalia does with a 35 year old precedent that puts the government in the vampire business.

How does one discern the original intent of John Adams when it comes to driving impaired?

By the way, on this day next year, we will be dealing with the last of the numerology fads, as it will be 12/12/12. Woo Hoo!

See You In Court.

lcp/psatb/r5/truckee

RUMPOLE MAKES AMENDS

2011-12-10T19:22:00.003-05:00

Governor Scott appointed three judges in Miami (Motto: "Give us your tired, your poor, your wretched refuse, your judges...") not the two we reported, so we apologize to County Court Judge D.J. Cannava for leaving him(?) out of our last post. It's sort of a record in a way. We usually wait until the Judge has donned the black robes and taken the bench before we insult them.

As our Captain reported:

Don't feel too bad for Donald "DJ" Cannava. In his first time interviewing with the JNC, his name was sent up to the Governor, not only for one of the two Circuit Court seats, but also for the County Court seat vacated by Judge Rosa Figarola (Circuit).

And the Governor chose Cannava as our newest County Court Judge, in his first time up.

A Rumpole Courage award goes to 29 year old Scott Millard. The Michigan attorney refused to let a cantankerous, sarcastic, sneering (aren't they all?) Judge Kenneth Post from questioning his client about when he last used controlled substances during an initial court proceeding. Mr. Millard was polite, respectful and firm and held his ground to the point where the Judge fined him $100 and then held him in contempt and took him into custody.

The ABA Journal transcript is here.

We would gladly pay his $100.00 fine if we could, and we want Mr. Millard to know that he will never pay for a drink in this town should he choose to visit our fair city.

Here is the arrest report for Officer Villa who was arrest for DUI in his vehicle last week

courtesy of ace Herald Reporter David Ovalle who was nice enough to email it to us.

Sorry about the size of the document. We think if you click on the link you will get the full size of the document. Officer Villa was taken to the station, no idea if he provided a breath sample, and then in violation of some policy/statute (?) that we were told requires drivers arrested for DUI to be held for 8 hours or until there is some proof they are sober, Villa was taken home instead of to TGK/DCJ.

Arrest Affidavit - Fernando Villa

YOUR NEW CIRCUIT JUDGES

2011-12-08T20:00:00.003-05:00

Six candidates....two spots...and your new circuit judges are (drum roll please)

Judge Norma Lindsey, elevated from County Court and

Angie Zayas. elevated from the mere mortal status of a lawyer.

Congratulations to both Judges. Now as our Governor likes to say:

Get to work.

Meanwhile we now have a county court vacancy courtesy of Governor Scott's elevation of Judge Lindsey, and a circuit vacancy courtesy of President Obama's elevation of Judge Robert Scola.

And the beat goes on.

HUM DRUM DUI

Here's a DUI scenario all of our DUI mavens can relate to.

Your client is passed out in his car in the middle of an intersection.

The police are called.

Your client is arrested and ....

1) Taken to the police station offered (threatened) a breath test and then taken to jail, or

2) Given a promise to appear by a sympathetic police officer and driven home by Officer Friendly?

Well, if your client is MIAMI DADE OFFICER FERNANDO VILLA then it's scenario number two. Herald article here.

And the beat goes on.

See You In Court.

7OTH ANNIVERSARY OF ATTACK ON PEARL HARBOR

2011-12-07T21:32:00.009-05:00

Wednesday December 7, 2011 marks the 70th anniversary of the Japanese attack on Pearl Harbor. It was the greatest generation's 9/11 and they answered the call of history and met the challenges of their time and set this country on the road to greatness.

When we think of Pearl Harbor we think of the great naval battle of Midway about seven months later . And when we think of Midway we think of the greatest American war hero you probably have never heard of: C. Wade McClusky, Jr.

Recall that what the Japanese didn't achieve at Pearl Harbor was the destruction of the U.S Carrier fleet, as the carriers were at sea and survived the attack unscathed. Seven months later in June of 1942 a Japanese naval armada of 200 ships set sail to attack Midway- a strategic atoll about 1,000 miles from Hawaii.

50 U.S Naval ships sailed to protect Midway including three carriers: The Yorktown, the Hornet and the Enterprise.

The attack on Midway was actually an elaborate Japanese plan to trap and sink what they believed were the two surviving US Carriers: The Hornet and the Enterprise. The Japanese believed they had sunk the Yorktown in the battle of Coral Sea. To make matters worse, the great US Admiral Bill Halsey was sidelined with a bad case of the shingles. He chose as his replacement Admiral Raymond Spruance, who had limited Carrier experience.

But the US had broken the Japanese code and Spruance and Admiral Fletcher, who was commanding the damaged Carrier Yorktown knew the Japanese plans and in turn planned a trap of their own.

But the greatest Naval victory in US History eventually came down to a humble 40 year old pilot from Buffalo, New York named C. Wade McClusky, Jr. Lieutenant Commander McClusky commanded Fighter Squadron Six on the Enterprise. The day of the battle he and about forty of his pilots flying SBD Dive Bombers launched looking for the Japanese Carriers. Several prior US attacks on the Japanese Carriers had met with disaster. When McClusky's force arrived at where he was told the Japanese fleet would be, he saw nothing. McClusky didn't panic. He led his squadrons on a classic search pattern and soon they stumbled upon a Japanese Destroyer moving quickly. Despite running very low on fuel, McClusky gave the order to follow the Destroyer and soon his squadrons came upon the Japanese fleet, totally unprotected and without air cover due to both strategic decisions of the Japanese Admirals and some plain old bad luck. Most of the Japanese air cover was on the deck being both re-fueled. Their bombers were also going through an ordinance change and the decks of the Japanese Carriers were stacked with bombs, torpedos, and fuel hoses.

If luck is the residue of design, McClusky's squadrons arrived at the precise moment when the Japanese fleet was totally unprotected and their Carriers at their most vulnerable. McClusky's SBD dive bombers pounced and in almost no time less than 40 planes sunk three Japanese Carriers. And just like that the war in the Pacific changed. The Japanese never launched another offensive Naval action after Midway and the battle remains the greatest American Naval victory.

All because a calm pilot from Buffalo didn't panic and kept his men together and led them into history.

See You In Court.

THINGS ARE GETTING STRANGE

2011-12-07T06:04:00.001-05:00

Before we get to today's topic, a little holiday housekeeping courtesy of the FACDL:

Dear Membership,

With the holiday season now in full swing FACDL is again joining hands with the Dade County Bar Association Homeless Outreach Committee to ensure that some of Miami's less fortunate children do not go without toys this year. Just as we did last year we will be setting up collection boxes on Wednesday in the REG Building to collect new, unwrapped toys that will be delivered to the families at the Champman Homeless Center in Miami. Through the efforts of Rick Freedman, and the assistance of Judge Yvonne Colodny, Carlos Martinez, Katherine Fernandez-Rundle, and the staff at Au Bon Pain, we arranged to have collections stations set up at Au Bon Pain restaurant on the first floor of the Justice Building, Judge Colodny's chambers in room 209, as well as both the State Attorney's Office, the Public Defender's Office.

Additionally, this year's FACDL Holiday party will be held on December 15th at the Miami-Dade Public Defender's Office. This year we are fortunate enough to have Administrative Judge Bertila Soto for what promises to be a very informative question and answer session. Just as last year, instead of charging an admission fee for this year's Holiday Party we are asking that attendees bring an unwrapped toy to be donated.

On December 21 at 6:00 pm there will be a holiday party at the Chapman Homeless Center where all the toys that have been collected will handed out to the children. The Dade County Bar Association welcomes, and urges, all the FACDL membership to attend. We are hoping that all of our members will make a point to attend this great event and contribute to this worthy cause. We had a wonderful turnout last year and with everyone's help we can top it this year. Happy holidays to all.

Things are getting strange in ....where else but Browierd County. The JAA Blog has all the details on the Redemption Movement.

Below are the videos of a defendant (self and apparently secretly made) who doesn't want to give his name. Pity the poor overworked PDs who are trying to get the fool to just give them his name.

Anybody have any experience with these jerks popping up in Dade County?

Here's the Judge trying to get the idiot to say who he is.

Post script:

It appears that our hero messed with the wrong Judge when he showed up late to Raag Singhal's court. According to the Broward Blog the Judge issued an AC and when the genius showed up and started his games Ragg took him into custody because he wouldn't give testimony sufficient to allow Raag to vacate the AC. Upon being handcuffed our brave hero broke down and wanted to admit everything, but by then it was too late and as of last word Mr. Funny Guy is in the Broward County Jail. Now he has a number to go with his name.

THAT OLD BLACK MAGIC

2011-12-05T20:17:00.006-05:00

What Rumpole is reading:

11/22/63: Absolutely Stephen King's finest. And even if you're not a Stephen King fan, this book is special.

The Sense of an Ending by Julian Barnes. When you're done with this shorter story you will immediately start re-reading it to see what you missed. Sounds weird? Read it and see.

Destiny Of The Republic: A Tale Of Madness, Medicine and Murder of A President. Candice Millard. Think you know everything there is to know about President James A. Garfield? Think again.

The bad thing about writing a good post over the weekend is coming home late Monday and feeling like we have to write something before people get bored. It's not like we have law professors at UM guest blogging for us.

First no soup, now no mail for Rumpole. The US Postal service will be making cuts in the spring.

Super size black holes are gobbling up the universe, and that has us worried.

North Miami Police Officers are casting Santeria spells on the City Manager (and getting fired for it.) Pure Birdseed.

The cost of fuel in Afghanistan has risen to $400.00 per gallon, but only for the US Military.

The Dolphins don't suck anymore after the drubbing they put on the Raiders on Sunday.

And only 19 more shopping days until Christmas (starting Tuesday).

See you in court.

LIAR LIAR POLICE ON FIRE

2011-12-03T07:57:00.004-05:00

Jerry Sandusky's attorney tries again and has his client sit for a two day interview with the NY Times here.

Query: When, if ever is it appropriate to have your client sit down with the press?

NO SOUP FOR YOU RUMPOLE!

One of the pleasures of going to trial in federal court, or showing up for an 11:30 hearing was having lunch at Lil Anthony's Italian Restaurant. As of Friday, the restaurant had served its last piece of pizza or plate of pasta. Or in Rumpole's case, the very best Tomato Soup in Miami.

The New Times has brief bit on the closing here. If anyone hears if and where they re-open, please let us know. We had two bowls of the soup yesterday, and will be going into withdrawal shortly.

LIAR LIAR BROWARD COPS ON FIRE

Here's the scenario: The Broward SWAT team serves a warrant. The defense files a motion to suppress and alleges that the police did not knock and announce. The detective takes the stand and give detailed testimony on how he saw the knock and announce and how they always knock and announce without fail. Always.

Then the defense plays the outtakes from a local police show showing that the police did not even remotely come close to knocking and announcing when they served the warrant in the case being litigated.

Lets play: So what does the Broward SAO do?

A) Nolle Prosse and apologize to everyone for presenting perjured testimony?

B) Open an investigation of the Detective and his squad?

C) Argue exigent circumstances the next day and refuse to drop the charges?

If you said C, you've seen how they work in Broward.

The JAA Blog has all the dirty details here and here.

Here's the point. Is this an isolated incident? Did the defense in Broward just get extremely lucky and happen to get the exculpatory information they needed in the one case the police lied/or were mistaken?

Or does this happen all the time and this is the one time they got caught?

How many times have you told the prosecution that this was the only time your client made a mistake, and how many times have they sneered at that fantasy and responded that this was the first time they got caught?

Here's what concerns us the most- and this is directed at our robed readers: How many times do you hear in court that the police lied? That they planted the drugs they claim they saw the defendant drop? That they hit the defendant and tore up the first two Miranda forms before he agreed to waive his rights? And how many times have you ruled against the defense and reasoned that police have no reason to lie? That it is foolish to think any police officer would risk their badge to lie about one insignificant case?

How do you feel when you see what is clearly an institutional bias to commit perjury whenever it suits them?

See You In Court, and by the way, get that attorney in Broward who nailed these cops an award and re-read that idiot prosecutor his oath as a prosecutor.

WORLD AIDS DAY

2011-12-01T19:25:00.007-05:00

Better late than never. Thursday was World Aids Day. But it's not too late to do your part.

Here is the Government's web site for World Aids Day. You can follow the links and find your own suitable charity and do your part.

We can't let this go. It's hard to imagine most of our readers passed the Bar. If you read the comments section from the last post, you will see speculation on who the young woman was referenced in our post. Most thought it was a prosecutor. Then we wrote that there was nothing in the post to confirm she was a prosecutor. Then someone wondered if she wasn't a prosecutor what could she be?

Co-counsel?

Counsel for the co-defendant?

Jury consultant?

Expert witness?

Come on people. Think just a little tiny bit outside the box.

It's all over the FACDL Listserv that great criminal defense attorney Roy Kahn tore it up in trial in civil court and got a 3.25 million dollar verdict.

Roy, can you spare a dime?

FACDL SPY

Our FACDL spy says the following things are in the works:

1) The clerk's office will now accept checks and debit cards for payments. For a brief moment the clerk's office decided to only accept coin as payment and then only quarters and nickels minted 2009 or beyond and then only from the Denver mint.

2) Security pass: Regular working private defense attorney Joes and Janes will be able to join their brethren from the SAO, PDs, and Regional Counsel (RC?) and bypass the security and walk in the side door.

Register us as completely 100% against this idea. Everyone, and we mean everyone including Judges and Bailiffs should have to go through screening. Otherwise the building turns into a sieve.

The security of an area is directly related to the square of the number of people who can bypass screenings.* With what will now be 100s of people not being screened as they enter, the chances of their being an "incident" of some sort is now much more likely than not.

See You In Court.

*That's not our formula but one employed by respected security agencies.

EVE OF DESTRUCTION

2011-11-30T20:06:00.004-05:00

The Scene:

Your favourite blogger in a hallway outside of a courtroom speaking with a young attorney.

Rumpole: Your description of what will occur if I proceed to trial is right out of Eve Of Destruction.

Young Female Attorney: Huh?

Rumpole. You know. Barry McGuire. Eve Of Destruction. A famous song from the sixties.

YFA: No. Never heard it.

Rumpole. Well, you weren't alive in the sixties. In fact, you weren't alive in the seventies. (Very long pause as we stared off in to space over her head. We think to ourselves that she is incredibly young and more than a bit attractive. Finally, after a few more awkward moments of silence:) Please tell me you were born in the eighties. Please dear lord don't say you were born in the nineties.

YFA: (Laughing) Why would that matter so much to you?

Rumpole: Well, for one thing it would cause me to go home tonight and drink much more than I had intended to.

YFA: (Laughing again) 1986. I was born in 1986.

Rumpole: Thank you. You've saved me just a bit.

Yeah, my blood's so mad, feels like coagulatin',
I'm sittin' here, just contemplatin',
I can't twist the truth, it knows no regulation,
handful of Senators don't pass legislation,
and marches alone can't bring integration,
when human respect is disintegratin',
this whole crazy world is just too frustratin',
and you tell me over and over and over again my friend,
ah, you don't believe we're on the eve of destruction.

See You In Court.

JB Spence and Buddy Payne, long time law partners and giants among civil trial lawyers in Florida, both died a few days apart in November, 2011. The Herald dual obit is here.

Election Central

2011-11-29T01:48:00.004-05:00

THE CAPTAIN REPORTS:

Election Central .....

Circuit Court Group 49. Richard Hersch now has an opponent. (ht to 5:48 pm).

Attorney Victor De Yurre, a member of the Florida Bar since 1977 has filed to run against Mr. Hersch. Many of you will remember Mr. De Yurre from his previous life in politics. He first ran for the Miami City Commission in 1987 against incumbent Commissioner Joe Carollo. He defeated Carollo and served on the City Commission from 1988-1995.

Like most politicians elected in our city, De Yurre attracted his share of controversy. In 1991, New Times did one of their many stories about De Yurre. The City of Miami was on the verge of bankruptcy, (so what’s new), and De Yurre had spent the taxpayers money on lavish trips out of the State and Country. De Yurre had taken nine trips in 1990, cultural missions is what I think they call them, to places like Italy, Washington DC, Seattle, San Francisco (supposedly to see programs for homeless people), and Brussels, among some of the places.

The trip to San Francisco must have been anything but eventful. I say that because, in 2002, New Times did a feature story called: “What Did You Do In The War On Poverty”? In the story they interviewed several past members of the Miami City Commission and they asked them each that exact question. When they got to De Yurre, he responded: “I can't put my finger on anything now. I can think of global things, like funding low-income housing projects. We also had those façades on Eighth Street, Overtown, and Liberty City -- injections of money that helped people spruce up places. I can't think of any individual thing I did. I really can't think of anything else I could have done.”

As a lawyer, De Yurre appears to have a solo practice in the downtown area. I have no idea what type of law he practices. I believe he has a son, Anthony, who is also a lawyer. Anthony works for Pathman, Lewis, and is involved in the political scene and is a mover and shaker in the community in his own right.

I would imagine that De Yurre could prove to be a formidable opponent to Mr. Hersch -of course, if Hersch happens to get tapped by Governor Scott to one of the three open Circuit Court seats, then he won’t have to worry about running for Judge again until 2014.

I also reported on November 21st on this BLOG that Fleur Lobree has drawn yet another opponent.

ELECTION CENTRAL ..... GROUP 20 COUNTY COURT

JUDGE LOBREE DRAWS YET ANOTHER OPPONENT

On October 12, 2011, on the Justice Building BLOG, I reported the following:

And the newest filing has someone challenging newly appointed County Court Judge Fleur Lobree:

William Pena Wells; (he is the attorney that caused much discussion on this blog on the issue of his being suspended by the Bar for three years as the result of his criminal conviction).

The newest candidate:

Michelle Alvarez Barakat. Ms. Barakat has been practicing law since 1999. She worked for the Florida Bar in lawyer regulation. She now practices in a two person firm with her husband, former ASA Brian Barakat. According to her web site, her practice concentrates on criminal defense and commercial litigation.

JUDICIAL APPOINTMENTS UPDATE:

We are waiting to hear from Governor Scott on several appointments:

Circuit Court open seats include: Judge Ivan Fernandez, Judge Amy Steele Donner, and Judge Robert Scola. Six names sit on Scott's desk for the Fernandez seat and the Donner seat. The JNC has not yet selected the names to replace Scola. Expect two new Circuit Court Judges to be named sometime during the week before Christmas.

Donald "DJ" Cannava
Miguel de la O
Richard Hersch
Norma Lindsey
Deborah White-Labora
Angelica Zayas

County Court open seat: Judge Rosa Figarola. The Governor has five names on his desk. Expect a new County Court Judge to be named around the same time as the two new Circuit Court Judges.

David Alschuler
Tanya Brinkley
Donald “DJ” Cannava
Ivonne Cuesta
Steven Lieberman

Cap Out .....

ON LINE MONDAY

2011-11-28T04:07:00.001-05:00

Now we move to the internet sales which start today. This orgy of consumption is a bit intimidating. And somehow sad.

Another Miranda case, another small chip knocked out of the decision by the Supreme Court. In Bobby v. Dixon, decided per curiam, (a latin term meaning literally "you lost badly") the court reversed the decision of the sixth circuit. For Miranda purposes the court held no violation where the defendant invoked Miranda during a non-custodial "chance encounter" with the police two days before confessing after Miranda. The facts in this case were distinguished from the "two-step" method to undermine Miranda employed by the police (and disfavored by a plurality of the court) in Missouri v. Seibert, 542 U. S. 600 (2004)

Here's a tough and kinda sexy Brooklyn Judge profiled in the NY Times.

"Tanned, toned and blond at 50-something (long-divorced, without children), Judge DiMango speaks in a comfortable Brooklyn accent. She wears short knit dresses — black or fire-engine red — that show cleavage underneath a robe that casually falls off her shoulders; she drives an aqua Porsche."

This is the last few days of November. When does the "it's almost Christmas so I don't want to go to trial" motions start creeping on to the court calendars?

See You In Court.

IF FRIDAY WAS BLACK...

2011-11-26T09:00:00.004-05:00

Then Saturday is?

The confusing thing about this "Black" labeling business is that Wall Street calls historically bad days "black" and retailers call the best day of the shopping year "black". Kinda confusing.

Johnny Walker Black? Good. Black Mark? Bad. In the Black? Good. Black eye? Bad.

I think some lawyers should get involved and resolve this inconsistency. Should only take a team of 20 and about 2000 billable hours to settle on a new word.

Speaking of lawyers, our old friends at Weil, Gotschal and Manages, have settled the NBA Strike! (The link is to the NY Times coverage).

Yes Virginia, there will be basketball this year. Your daddy can pay $500 a seat to see Dwayne Wade and Lebron James et.al., play at the AA arena starting Christmas day. Heat v. Mavs. Go Heat! Another under achieving over paid team of spoiled players.

And yet, this time around the players will not be so over paid. They capitulated. They caved. They didn't like their old deal so they went on strike. They didn't like the new deal offered, so they decertified the union. And then they settled for a pay scale that can go as low as 49% of revenues, or as high as 51%. Under the former deal that the players found so onerous, they were getting 57% of revenues.

The message is don't mess with the guys at WGM. They will eat your lunch and double bill you for it when the deal is done.

Except when they mess with yours truly.

So go hit those day two sales and see just how high your credit can go.

The Fins lost a close one in Dallas on Thanksgiving and say what you want but Tony Sporano and his team have showed real mettle in battling back from a disastrous start and not giving up. We think TS has earned another shot at coaching down the line. Unlike certain basketball teams in town, his players aren't spoiled brats.

See You In Court Monday, turkeyed out.

psatb/rposttd/bfsat?/rit

TURKEY DAY

2011-11-23T20:58:00.004-05:00

Lots of interesting chatter in the comments section from the previous post.

Sitting home tonight and watching the Verdict.

Query: What's the best legal movie?

Certain lawyers with an affinity for blogging about federal court will tell you that it is A Few Good Men. But for our money, it's Paul Newman in The Verdict. Rocky for trial lawyers. Our favourite part is not the courtroom scenes, as good as they are, but the scene where the Archbishop offers Newman $210,000.00. Newman asks how he arrived at the sum and the archbishop says he thinks it's a fair offer. Then Newman says that he is struck by how well the offer is divisible by three and the Archbishop responds that was the idea of their insurance company. Newman turns the offer down.

The scene where Newman yells at the Judge and calls him a "bagman for the boys downtown" also makes us smile for some unknown reason.

Can't beat Miles O'Shea as the Judge either.

Enjoy your turkey and the holiday.

TURKEY WEEK

2011-11-21T06:56:00.003-05:00

Front page of the NY Times: "What They Don't Teach in Law School: Lawyering."

Front Page of the NY Times Magazine: "Teaching Good Sex".

And they accuse the comments section on the blog over the weekend of being weird.

Law and Sex. The question is how much are our readers influencing the editors of the NY Times?

FIU MOOT COURT

They are teaching good lawyering at FIU Law School. Over the weekend Professors HT Smith and Scott Fingerhut ran their annual Moot Court Competition. Judges from the 3rd DCA and the REGJB took time out of their weekends and presided over the trials while dozens and dozens of lawyers from the PD, SAO and private practice attended the trials as "jurors" rating the law student participants. We heard via a few emails (some apparently while the competition was in full swing) it was a great success, and congrats go to the law students and thanks to the Judges (it's almost the end of the year, we need to be nice to robe wearers at least once) and lawyers who gave selflessly of their time.

Anybody going to trial with two and half days of work scheduled for the week? Clerks and courts should close Wednesday at noon if tradition holds and the chief judge issues an order pardoning a local turkey and court and clerk personnel.

Anybody ever try a Turducken for Thanksgiving? It's a turkey stuffed with a chicken which is stuffed with a duck. Throw in some sausage and cornbread and it takes 12 hours in the oven. We saw one being prepared. Looks amazing.

See You In Court. Enjoy the holiday week.

ITS A LONG LONG ROAD

2011-11-17T22:11:00.007-05:00

Mr. Black was pondering rebuttal arguments. Actually he was beyond pondering. He was mulling though his collection of great rebuttals of the past. Want to know why Mr. Black is a great lawyer? Read his blog. He loves and respects his craft. And he constantly studies it.

Mr. Black calls the prosecutor's rebuttal in the prosecution of Dr. Conrad Murray "as good as it gets." and "It was a coup de grace." High praise from a lawyer who knows a good rebuttal when he hears one.

Speaking of rebuttals, we were always of the belief that a good piece of defense evidence was more than worth sacrificing the right to a rebuttal argument. This was back in the day when the defense had the rebuttal closing argument unless they introduced a piece of evidence. However, now that the defense no longer has the chance at a rebuttal closing argument, we miss it.

True the prosecution has the burden of proof. But they get to proceed first at every critical stage, from voire dire to opening. Sometimes a good last word works wonders.

Oscar Ramiro Ortega-Hernandez thankfully does not join the historical litany of multi-named assassins, as his attempt on the life of President Obama was not successful and he is now in custody. Ortega-Hernandez shot at the White House while the President was a continent away. However one projectile struck the facade over the Truman Balcony where the President and his wife sometimes sit and relax. Do we now have to sequester our President in a physical bubble at all times? Maybe so. But the important point is Mr. Ortega-Hernandez's Second Amendment rights were not infringed before he shot up the White House, right? Right?

"It's a long long road, from which there is no return..."

The Hollies*. He Ain't Heavy. He's My Brother.

*HT to Scott Saul for correcting us.

Happy Birthday, Six & Counting

2011-11-16T01:03:00.011-05:00

JUROR ARRESTED FOR THEFT! (This is why we started the blog). David Ovalle has all the details here as a juror who was going through security snapped up a Mac Lap top. Surprisingly good police work solved the "Case of the pilfered 'puter" in record time.

HAPPY BIRTHDAY

JUSTICE BUILDING BLOG

Congratulations to Horace on his 6th Birthday as Administrator of the Justice Building Blog. And with due deference to South Florida Lawyers, Southern District of Florida, and the Broward Blogs, we here would like to say that your BLOG is Number One in our book.

Don't know if you'll be around for another six years, but many of your loyal readers and posters will stick with you for as long as you are willing and able to continue with your fine administration of the BLOG.

On a lighter note:

The Captain Reports:

As mentioned by one of our loyal readers, attorney Miguel de la O, who filed many moons ago for an open Circuit Court seat in Group 42, now has an opponent. That opponent is attorney Greer Elaine Davis Wallace, a solo practitioner with an office in Florida City, she specializes in family law and has been practicing since 1979.

Captain Out .....

JAIL TIME

2011-11-14T15:31:00.007-05:00

Although Mark Twain wrote "regret for wasted time is more wasted time" we fall squarely behind Carl Sandberg who wrote "Time is the coin of your life. It is the only coin you have, and only you can determine how it will be spent. Be careful lest you let other people spend it for you." Not bad for a second baseman for the Chicago Cubs.

Very secretly we have been conducting an experiment. With the help of twenty attorneys, we have tracked the wait time to see a client at the various pre-trial holding facilities. Our attorneys faithfully emailed us their experiences, and we have now correlated the data. *

The Best facility to go and see your client is.....DCJ! With an average wait time of 16 minutes from entering the facility to when the actual interview begins. Comments about DCJ tended to be that the hardest part of the visit was clearing the screening process. The only major obstacle that our attorneys ran into at DCJ was the limited interview rooms on each floor- usually one. If someone was already seeing a client ahead of you on the same floor as your client, then the wait time significantly increased, usually more than tripling.

Second place was....Metro West. Putting aside travel time, the average wait time to see a client a Metro West was 34 minutes. The problems at Metro West are well known. The interview rooms fill up; the staff can take over an hour to bring your client. But when things go well at Metro West the visit tends to run smoothly. But horror stories included waiting 94 minutes for the client to be brought and waiting 67 minutes only to be told the client was ill and couldn't come down. When the interview rooms were full the average wait time tripled to 110 minutes, with most attorneys feeling that after having made the drive, they were trapped into having to wait to see their clients.

Third place was the Stockade with an average wait time of 41 minutes. Most attorneys expressed surprise that when they timed it the wait was as long as it was. The experiences attorneys had varied, with one public defender swearing that he/she averaged 16 minutes in wait time over 11 visits over three months. On the other end of the spectrum, one hapless attorney said he was turned away four times over the course of one week, including twice in one day when he was told the facility was on lock down.

Last place was TGK. One memorable comment about TGK was that "it is the Eeyore of jails". The average wait time was 53 minutes, with the main problem being that about half the time the attorneys were allowed access to travel to the area where their clients were held and the other half of the time the attorneys were forced to wait for an escort. Without an escort, TGK vaults into second place with a wait time of 21 minutes. But the wait time skyrocketed when the attorney was told to wait for an escort, with times averaging well over an hour.

What can be done?

The Feds have a system that allows an attorney to email ahead and request a client be brought down to the interview room. Even the Broward County Jail will bring your client down if you call ahead and tell them you are on your way.

But this is Miami, where reason and common sense have no place in matters such as these.

See you in court.

*Over a period of the last six months, over 20 attorneys took part in collecting data for us. Some attorneys emailed us dozens of reports faithfully detailing all of their jail visits, while other attorneys participated once or twice and then opted out. All times do not include travel time. We cannot vouch for the accuracy of what was reported to us and the highest and lowest reported wait times for every facility was discarded in formulating the averages we arrived at.

11-11 NONSENSE

2011-11-12T13:51:00.005-05:00

Don't know about you, but we've had more than enough of this 11/11/11 crapola. Only one more year of having to deal with this nonsense (12/12/12) and then the human race does not have to deal with this again for another 89 years.

Maybe next time around we'll be more mellow in our middle age years.

Mr. Black's final critique of the defense closing in the Dr. Conrad Murray case is worth a read here.

Mr. Black summarizes the defense failures:

When you are speaking on a national stage, it has to be first class. How many opportunities does a lawyer get like this? Why waste it with inanities? I would have walked the jury through a list of the strongest points I had with excerpts of the testimony. Hit them hard and make them unforgettable. Once again missed opportunities.

Clay Kaeiser has this great remembrance of Judge Phil Knight:

I'll never forget a marijuana possession case that I tried in front of Judge Knight in which he called us all sidebar halfway through the trial and told the prosecutor that he was going to grant my motion to suppress. One problem--I had not even filed a motion to suppress. Needless to say, sensing immediate victory, I remedied this problem by making an "oral motion" that was quickly granted. Many months later, in a social setting, Judge Knight explained the incident by telling me "Clay, nobody has ever gone to jail for marijuana in my court." He'd done so many jury trials that he must have sensed a guilty verdict and decided to abort the whole proceeding.

Despite this, Judge Knight was no bleeding heart--god forbid that you had a client convicted of a violent offense in front of him for sentencing--but he did have a very developed theory of punishment that minimized victimless crimes. He was an armed services veteran who had worked his way through law school (as either a librarian or in the post office) and eventually became a partner in one of the big downtown law firms (Fowler White?). Despite his well-documented problems, he was one of the most intellectually gifted and hardest working judges who have ever served in the Justice Building. And he had a great sense of humor. Once, around Christmas time, a young female defendant, represented by Sy Gaer, said to the Judge "you look just like Santa Claus" As Judge Knight smiled (trying to look even more like Santa Claus), Sy said to his client, "but wait until you see what he has as a present for you." The whole courtroom--including Judge Knight--cracked up.

CK

Justice Scalia (DOM's BFF) has little patience for federal habeas claims attacking state court convictions. Greene v. Fisher.

a federal court may not grant habeas relief to a state prisoner with respect to any claim that has been “adjudicated on the merits in State court proceedings” unless the state-court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as deter- mined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1). We consider whether “clearly estab- lished Federal law” includes decisions of this Court that are announced after the last adjudication of the merits in state court but before the defendant’s conviction becomes final...

We have said that its standard of “contrary to, or involv[ing] an unreasonable application of, clearly established Federal law” is “difficult to meet,” because the purpose of AEDPA is to ensure that federal habeas relief functions as a “ ‘guard against extreme malfunctions in the state criminal justice systems,’” and not as a means of error correction...

The retro- activity rules that govern federal habeas review on the merits—which include Teague—are quite separate from the relitigation bar i

mposed by AEDPA; neither abrogates or qualifies the other. If §2254(d)(1) was, indeed, pegged to Teague, it would authorize relief when a state-court merits adjudication “resulted in a decision that became contrary to, or an unreasonable application of, clearly established Federal law, before the conviction became final.” The statute says no such thing, and we see no reason why Teague should alter AEDPA’s plain meaning.

The weather is beautiful. Enjoy your weekend.

11th Hour 11th Day 11th Month

2011-11-11T00:21:00.000-05:00

(Re-run from last year and this is the fourth Veterans Day we've run the video. And while you're at it click here and read Judge Jon Schlessinger's moving tribute to his Uncle Edward Kielich, who was buried with full honours at Arlington Cemetery. BTW somehow we forgot to wish Happy Birthday yesterday to our beloved corps. 236 and going strong. Semper fi.

Check out DOM's post on Judge Palermo- WWII Veteran. Bronze star and six battle stars. A great American Hero. )

They’ve seen things we could never imagine.

They’ve done things people were not meant to do.

They risked their lives so we can live in freedom.

They are our veterans and today we honor them.

We've posted this video the last two threeand it bears watching again.

93 Years ago today, on the 11th hour of the 11th day of the 11th month of 1918 the guns of the great war fell silent.

Our Boys, The Doughboys, lie at rest in places with names like Flanders, Bony, and Belleau. They died on battlefields named Marne, Somme, and Verdun. Almost 5 Million Americans were in uniform for World War I, and over 100,000 died, and more than half of those deaths were on the battlefield.

It was the first time American boys would be asked to save Europe. It would not be the last.

Our nation has answered the call time and time again. Mostly for the right reasons, but not always. Yet we’ve always answered the call. And the price has always been high. Our young men and now our young women lie in battlefield graveyards all over the world, never to grow older, never to see the results of their sacrifice. Sacrifice given with the full assurance that their country would never let them down and would never forget.

Today we remember. And at 11 am, stop for a moment and take two minutes and reflect on the good things in your life. Think of your home, or your children, or your parents, or the freedoms you enjoy, and your comforts and remember none of that would have been possible without them.

Thank you. It doesn't seem enough, but Thank You, each and every one of you.

JUDGE PHIL KNIGHT PASSED AWAY IN MAY

2011-11-09T20:30:00.004-05:00

Judge Phillip Knight passed away in May of this year.

We received this email:

Rumpole, you missed the fact that Judge Phil Knight passed away in May 2011. Could you please post something?

The reader is correct. We did miss the fact that Judge Knight passed away. The title of the post links to his obit.

Judge Knight was a brilliant man. An accomplished attorney and a great and well respected trial Judge, Judge Knight set the standard for running an efficient courtroom. Judge Knight often was in his chambers by 7:00 AM, reviewing files, reading motions and generally preparing for the days cases. It was not unusual for Judge Knight to have his calendar concluded by 9:30 and a trial started by 10:00 AM. Judge Knight was so efficient, and his court audit was so low, that we often heard from other disgruntled colleagues that Judge Knight must have had some agreement with the clerk's office to assign less cases to his division. Of course nothing could have been further from the truth. Judge Knight's audit was low because he was a hard working judge.

Judge Knight was human and like all of us he battled his demons. But Judge Knight was a great Judge and a valuable addition to the REGJB for the time he served as a circuit judge. It was gratifying to read that upon his retirement he lived a full and happy life in Sun City, Tampa,. Judge Knight was a true Miami original and we will not see his like in these parts again.