Recent Broward Law Blog Features

Monday, December 28, 2009

Minnesota Man Chalks Up 20th DUI Arrest!

Paul D. Garay has a history of drunken driving. And by "has a history," we mean "has a lifetime 20 arrests for drunk driving." Over Christmas weekend this 55 year old dude pitched his Chevy into a ditch in Minnesota again, sporting a BAC twice the legal limit.

Alcohol problems aside, Garay's hardly a shining beacon of responsible citizenship; from 2003-2006, he served a drug-related sentence, and his latest arrest constitutes a violation of parole, so he was held without bail. Jay Hurley was getting married, and tends not to cover Saint Paul cases, so we did not get to hear him opine on this particular defendant.

Now even as a defense attorney this next fact shocks me: because of the way Minnesota law works, Garay won't have to worry about being charged with a felony for his latest escapade. A fourth DUI within a 10-year span carries the force of a felony, but only two of Garay's 20 DWIs happened in the last decade, so the crime will be charged as a gross misdemeanor instead. He has been a good boy, apparently- at least over the last ten years or so.

But the best indicator of future behavior is past behavior. Mr. Garay has apparently not conquered inner demons. Needs to try again, if not for his own safety, than that of all the others in his neighborhood.

Sunday, December 27, 2009

Whites Smoke Pot; Blacks Get Arrested

Hope you had a Merry Merryjuana Christmas.

Here is an article from the NY Times worth reading. Comes down to this.

Whites smoke pot. So do Blacks. Guess who goes to jail more often >?

Last year, black New Yorkers were seven times more likely than whites to be arrested for marijuana possession and no more serious crime. Latinos were four times more likely.

Surprise, surprise

Percy Sutton Passes

A king in the field of civil rights law, Percy Sutton, passed away today, at the spry age of 89.

The son of a slave, Percy Sutton became a fixture on 125th Street in Harlem after moving to New York City following his service with the famed Tuskegee Airmen in World War II. His Harlem law office, founded in 1953, represented Malcolm X and the slain activist's family for decades.

The consummate politician, Sutton served in the New York State Assembly before taking over as Manhattan borough president in 1966, becoming the highest-ranking black elected official in the state.

Sutton also mounted unsuccessful campaigns for the U.S. Senate and mayor of New York, and served as political mentor for the Rev. Jesse Jackson's two presidential races.

In 1971, with his brother Oliver, Sutton purchased WLIB-AM, making it the first black-owned radio station in New York City. His Inner City Broadcasting Corp. eventually picked up WBLS-FM, which reigned for years as New York's top-rated radio station, before buying stations in Los Angeles, San Francisco, Detroit and San Antonio between 1978-85.

Among Sutton's other endeavors was his purchase and renovation of the famed Apollo Theater when the Harlem landmark's demise appeared imminent.

Sutton's father, Samuel, was born into slavery just before the Civil War. The elder Sutton became principal at a segregated San Antonio high school, and he made education a family priority: All 12 of his surviving children attended college.

In addition to representing Malcolm X for a decade until his 1965 assassination, the Sutton firm handled the cases of more than 200 defendants arrested in the South during the 1963-64 civil rights marches. Sutton was also elected to two terms as president of the New York office of the NAACP.

Sutton was among the first voices raised against the Vietnam War, surrendering his delegate's seat at the 1968 Democratic convention in protest and supporting anti-war candidate George McGovern four years later against incumbent President Richard Nixon.

Even if you were not from up north, Sutton's legacy of fighting for the right causes reached the deep south. A man to be remembered, a pioneer to be commemorated, and a lawyer to be reckoned with...

Friday, December 25, 2009

Who Owns the Beachfront?

If you are the owner of beachfront property and the state comes along and widens the beach, do you own the new land or does the state?

Will the vision of hot dogs stands, port-a-johns and partying spring breakers lead the Supreme Court to overturn part of a Florida law designed to replenish lost beach sand?

Will Justice John Paul Stevens’ ownership of a beachfront Fort Lauderdale condo wind up effecting the result of a major judicial decision?

Early this month, the Supreme Court heard arguments evolving out of a dispute about the ownership of new land created by Florida's beach replenishment program. The state claims it controls the new land it creates. Interesting debate I have been meaning to blog upon.

A group of disgruntled beach-front property owners on Florida's panhandle don't see the program as an environmental blessing. Instead, they contend it is a naked land grab by the State to turn private beaches into public hands.

The private landholders' concerns were echoed loudly in the courtroom by skeptical justices who raised numerous concerns over the possibilities of what could happen on the new land. Chief Justice John Roberts wondered if a hot dog stand could go up on the new beach. Justice Samuel Alito asked about the possibility of a televised spring break beach party.

Florida Solicitor General Scott Makar argued that the state controls all land it creates on its side of the dividing line though it preserves the private landholder's right to access the water.

That concession didn't go over well with Justice Antonin Scalia who said, "The notion that the only purpose of the contact with the water is so that you can have access, that is -- is that not silly?"

Justice Samuel A. Alito Jr. said that the owners might have more to fear than a lone hot dog vendor, wet or dry. “You could have televised spring-break parties in front of somebody’s house.”

Roberts also seemed dismayed at Makar's suggestion that the hog dog-stand scenario wasn't on point because it wasn't part of the justification to create new beach land. It was an intriguing debate.

"That is what the whole case is about," Roberts said. "Whether [the private owners] have a right to contact the water or not."

Justice Kennedy first expressed concern about handing down a ruling leading to federal judges getting mired in questions of state law. But later in the argument he took issue with the potential consequences of the state's control of the new land. "I'm asking whether or not a state beach with, what do you call them, port-a-johns and hot dog stands and what-not, isn't a substantial impairment of the (private) owner's use?

In a somewhat surprising development, Justice John Paul Stevens did not take part in the arguments. There was no immediate explanation for his apparent recusal, but he owns a beachfront condominium in Fort Lauderdale. A tie would automatically affirm the lower court’s decision, meaning the property owners would lose.
My only thought is I don't want to see Justice Stevens give up the condo. I like seeing him quietly have an omelette at the Floridian every so often.

Dad Prosecuted for Taking Child to Hooker to Make Him 'Straight'

An Australian father who is accused of forcing his teenage son to have sex with a prostitute — out of fear that he was gay — may face rape charges.

As the rest of the family celebrated Christmas 2007, the father allegedly took his son to a motel in North Rockhampton, where he paid the prostitute to have sex with his son, according to The Morning Bulletin, a newspaper in Rockhampton. And jiminy cricket!, the kid was only 14.

He left the room, demanding that the boy show him a used condom as proof he finished with the prostitute. A magistrate decided on Tuesday that there was enough evidence to bring the father to trial.

“First [he] didn’t want to say anything to me,” the boy's mother testified. “Then he told me his father took him to a motel room and there was a prostitute there.

Detective Christine Knapp said police first became aware of the situation when the father tried to report his son to authorities six months later, in May 2008, saying the boy was abusing his younger brother. Seems to me the dad had some courage in reporting the sexual abuse of one of his teenagers. Could not have been easy when the accused is the other sibling.

The father said he “tried to sort it out himself by taking his son to a prostitute” to no avail. The alleged prostitute has yet to be found. Somehow I don't think the dad kept tax records.

I don't buy into this kind of prosecution. I think most kids would get off, forgive the phrase, on their dads bringing them to a hooker. Not a gay kid, though, to be sure. Not at the age of 14. Not very bright of the dad. Shows a considerable lack of understanding; that the pops need attention too. I think there are some more serious issues here, though, which deserve some serious counseling and intervention, don't you?

It's just hard to blame the dad for tryin.... just sayin'..... Most dads want their kids to grow up to be like Tiger Woods... :-) They have a hard time believing they raised Harvey Fierstein instead. But getting the courts and the justice system involved. I think there are other issues to deal with.

The Film 'Forgiven' Debuts on Cable, DVD

Matt Kelly blogs on Criminal Justice. his blog, of a film I know little about, and look forward to catching this next week. I kept on hearing about it, missing it, and look forward to seeing it. So here is a review for you by another lawyer who says it is compelling:

"I recently saw the film “Forgiven,” Paul Fitzgerald’s moving and thoughtful directorial debut, which ponders the injustice of a wrongful conviction, the healing and redemption possible in the aftermath, and the politics that can get in the way. It became available (streaming and DVD) on Netflix this week, and it’s well worth moving to the top of your queue.

The well-crafted (though sometimes meandering) indie flick explores the fallout of a wrongful death sentence and the inherent dangers in society’s thirst for tough-on-crime policy. Fitzgerald plays a conservative young district attorney making a bid for the U.S. Senate. His commitment to conviction may have been too strong, however, and an exoneration threatens to overwhelm his political ambitions. The movie has plenty of twists and turns and I won’t spoil it here.

“Forgiven” raises several sensitive and critical issues around wrongful convictions and criminal justice policy. The injustices dealt by our court system are very real, and they won't end soon. For countless reasons, we can't continue to turn a blind eye to the suffering of our fellow citizens imprisoned for crimes they didn't commit. This film makes this reality painfully clear."

On this Christmas Day, I pay tribute to all those in the criminal justice system, working daily to work out the kinks which make our justice system unjust.

I applaud those working to make things fairer for everyone, whether you do so wearing a badge or by writing from a blog; whether you wear a robe or a hospital gown. If you get up in the morning and can fight doing things as usual, avoid the apathy which can invade our lives, and stand for what is right, bucking the tide, swimming against the stream, I applaud you, your energy, your vision.

May you find a song in your heart and a smile on your lips.

Merry Christmas.

Thursday, December 24, 2009

Healthy Holiday?

Anyone that wants to place their faith in the government ought to look at how many people get elected to office running against it.
Merry Christmas.

Escaped Prisoner Updates Facebook Page

This story is too much fun not to write about. It is certainly going to make Jonathan Bleiweiss very jealous, you know the popular ex BSO officer in jail on charges of sexually assaulting immigrants he detained on traffic stops. Not pretty. But here is the story:

British police have appealed for information about the whereabouts of an escaped prisoner who has been telling the world via Facebook about his life as a fugitive.

Craig Lynch, 28, escaped Hollesley Bay open prison near Suffolk, eastern England, back in September, but has continued to update his Facebook status regularly -- describing everything from his meals to who his next girlfriend will be.

"Mmm... Just had a 12lb venison steak. Roasted veg and chips, bangin meal. I feel stuffed but still got room for the j.d's . Hope you enjoyed the meal babe's. We'll have to eat here again" Lynch wrote on his wall.

In another posting from earlier this week Lynch wrote "Is thinkin, which lucky girl will be my first of 2010!!." Police are trying to use clues left by Lynch on his Facebook to track down where the convicted burglar may be hiding. And they are appealing to the public. I think the guy is going to become a cult hero. We just live in that kind of world.

Lynch was sentenced to a seven-year prison term for aggravated burglary and was serving his sentence in an open prison before his escape, according to a police spokeswoman.

"Obviously we're taking what he's saying on Facebook with a pinch of salt because he's now aware that people may be reading what he's writing." News that Lynch's Facebook was being updated broke yesterday and since then, he has written several times of his life on-the-run. It made today. Probably the national news tomorrow. What a world we live in.

By the way, Lynch is not all that optimistic. This afternoon he wrote:

"well what can i say fellow friends. The run is nearly over. Sorry some of you had to find out like this. I know some of you might take offence that i never told you personally. But you know me. I Trust No One. Its the only way to be."

Well, is there a prison newspaper he can run ?

New Driver's License and ID Rules In Effect

Beginning Jan. 1, new documentation requirements will take effect for Florida residents wishing to obtain a driver license or identification card. It's going to be more of a pain in the ass than usual.

Those wishing to obtain a new license, legally change their name prior to their renewal date or immediately replace a lost or stolen license or ID card will be required to visit a driver license office and show proof of identification, Social Security number and residential address (two items). Welcome to the world of linkups with Homeland Security.

Those simply renewing may do so by a convenience method, via the Internet or mail, one time between office renewals.

The renewal, following a convenience option, must be in a state driver license office (or participating tax collector office) where new requirements will be in effect. Floridians are encouraged to visit to find out how and when to gather your documents, go to a driver license office and get your new card. This online hub allows residents to obtain contact information showing where to get required documents, create personalized checklists and browse a list of local driver license offices in their area.

"These new requirements support the most secure identification credential possible," said Division of Driver License Director Sandra Lambert. Florida law was enacted to ensure the state's compliance with the provisions of the Federal Real ID Act. No more Mohammed Attas for us. Now as for the license in the picture, well you all know I am a Sports Memorabilia collector. Appreciate the spelling by Tallahassee of Joe D's address in 'Miaim'.

For more information about the GatherGoGet campaign, or to see a full list of required documents, visit

Wednesday, December 23, 2009

Drive Safe!

Over the Holidays. Stay sober. Be careful. Consider your neighbor. Take care of your friends. Be nice to your family. And remember if you love something, set it free. If it comes back to you, it is yours. If not, hunt it down and kill it :-)

Tuesday, December 22, 2009

Are You Entitled to Overtime Pay?

It just seems that one of the most common questions I get is whether employees are being treated fairly by their employer's pay practices. Joseph Maus specializes in that area so around the Holidays with money on your mind, I thought I would take him up on the opportunity to syndicate his blog piece on an issue vital to your finances.- Norm

Guest Blogger: South Florida Attorney Joseph M. Maus

One of the primary laws dealing with overtime in the U. S. is the Fair Labor Standards Act (FLSA) which was passed in 1937. The United States adopted the Act in order to set certain wage standards and guidelines for employers. The FLSA requires that employees who work overtime be paid for the additional time they have worked beyond the standard 40 hour work week. In addition to the FLSA, the state of Florida also has a separate set of regulations that employers must follow when it comes to paying overtime for their employees.

-In Florida, overtime wage payments are structured to go along with the U.S. guidelines. Often, though, an employer may ask an employee to do something that seems innocent, such as requesting them to check company email or answer an office-related text message over their lunch break, or maybe staying a few minutes late so they can wrap up a meeting. They may require employees to set up or put away equipment before or after normal working hours or may not pay for time spent on legally mandated breaks. If this has happened to you and you are a non-exempt employee, you may be entitled to an overtime wage claim in Florida. All of this unpaid time can add up, too: if you only work an extra 20-30 minutes a day doing these "extras", that means you are working unpaid for at least two hours a week. Figured at $12.00 an hour over a two year period, your employer could owe you $2,500.00!

-Most "salaried" employees are entitled to an overtime wage payment! In many cases, being paid a salary just means the employee gets paid the same amount of money each week. Your status as an exempt or non-exempt employee is what determines your eligibility for overtime pay.

-Some employees work over a two-week pay period that adds up to an average of forty hours a week (an example would be when you work 35 hours in one week and 45 hours in the second week). It is not allowable for an employer to average your work hours between two weeks to determine overtime pay. In cases like this, you may be entitled to overtime pay for the second week if you are a non-exempt employee.

-Employers can not give you comp time off instead of paying you overtime wages. This is a violation of the FLSA.

-The FLSA and the Florida wage laws prohibit employers from punishing or firing an employee who has asserted his or her rights to overtime wages.The FLSA allows employees two years to file an overtime lawsuit or three years if the employer's violation was willful. Employees and former employees should file a claim with a Florida overtime wage attorney as soon as possible after a suspected violation so the attorney can put the strongest possible case together.

-Even though the FLSA is supposed to provide regulations that provide that all employees are treated fairly, some employers routinely fail to pay their employees overtime pay, even if they do not intentionally try to get out of doing it. The overtime wage laws are confusing and complex - it is easy for employers to either misinterpret the FSLA or try to get around the law to avoid paying their employees a Florida overtime wage

Florida overtime attorney Joseph M. Maus can help if you have a question or need information on Florida overtime wage claims. Contact him at 1-866-556-5529 or email him today for a free consultation. The Law Office of Joseph M. Maus and Associates has handled some of the largest Florida overtime wage claims. Attorneys in their offices were recently appointed in Federal Court as lead counsel in an Overtime Class Action against a large Fortune 500 Company.

Sunday, December 20, 2009

Drug Courts Help Drive Down National Prison Populations

There is an AP news story by Jeff Carlton this weekend revealing that the US prison population may drop for the first time in almost four decades, with one state having a notable exception.

Let me see if you can guess which. Seems that Florida, which has, of course, enacted a law requiring all convicts to serve a high percentage of their sentences, is the anomaly. So our prisons are bulging at the seems, while other states streamline their unnecessary detainees.

Nationally, inmate population has risen steadily since the early 1970s while states adopted get-tough policies that sent more people to prison and kept them there longer. But tight budgets now have states rethinking these policies and the costs that come with them.

"It's a reversal of a trend that's been going on for more than a generation," said David Greenberg, a sociology professor at New York University. "In some ways, it's overdue." Of course it is overdue. Especially with nearly a million people a year still getting arrested on pot charges.

About 739,000 prisoners were admitted to state and federal facilities last year, about 3,500 more than were released, according to new figures from the bureau. The 0.8 percent growth in the prison population is the smallest annual increase this decade and significantly less than the 6.5 percent average annual growth of the 1990s. Overall, there were 1.6 million prisoners in state and federal prisons at the end of 2008. Nothing to be proud of.

In Texas, parole rates were once among the lowest in the nation, with as few as 15 percent of inmates being granted release as recently as five years ago. Now, the parole rate is more than 30 percent after Texas began identifying low-risk candidates for parole. That is in a state where George Bush was once governor. Even in Mississippi, laws requiring drug offenders to serve 85 percent of their sentences have been reduced dramatically, recognition that continued treatment is more important than mandated incarceration.

California's budget problems are expected to result in the release of 37,000 inmates in the next two years. The state also is under a federal court order to shed 40,000 inmates because its prisons are so overcrowded that they are no longer constitutional, the AP article reports.

States also are looking at ways to keep people from ever entering prison. A nationwide system of drug courts takes first-time felony offenders caught with less than a gram of illegal drugs and sets up a monitoring team to help with case management and therapy. But here in Broward you get cases going to court where persons are found with less than one tenth of one gram of coke. Residue cases they are called. How foolish. How about a mandatory referral to drug court instead?

Experts across the country now acknowledge that drug courts are the single most important mechanism in helping drive down prison populations. By enhancing treatment and supervision, allowing for rehab instead of jail, criminal justice budgets are stabilized not stretched and addicts are counseled. Reform. It is not a dirty word. I wish prosecutors and politicians here at home would understand that.

No More Routine Shackling of Juveniles in Custody, Court Rules

Juveniles should be handcuffed or shackled during court appearances only if judges have a good reason for the restraints, the Florida Supreme Court said Friday, about thirty years late.

The justices followed recommendations by the National Juvenile Defender Center. Under the guidelines the court issued Thursday, judges can order juveniles to appear in chains if allowing them unrestrained would endanger them or others, if they have a history of being disruptive or if there is a risk of flight. Why was it ever any other way?

Stop and think a moment, those of you who have been coming to the courthouse for decades? Has it not been very odd the way children locked up in the detention center have been paraded through the hallways of our courts like prisoners in a chain gang?

Those that are threats, flight risks, or present a danger, sure, align your guard and take preventative measures. But for how many years have we simply treated kids as cattle?

"We find the indiscriminate shackling of children in Florida courtrooms . . . repugnant, degrading, humiliating, and contrary to the stated purposes of the juvenile justice system and to the principles of therapeutic justice, a concept which this court has previously acknowledged," the Supreme Court said.

The keyword was 'indiscriminate.' There was no rhyme or reason, just a tolerated pattern of conduct none of us ever did anything about. We just accepted it as the 'way that it was.'

In retrospect, as someone who actually once sued to close the juvenile detention center, not once, but twice, I am embarrassed myself that I never sought that relief years earlier. Between all the judges, juvenile advocates, the National Law Center, I think we all just became routinely anesthetized and indifferent; never even processed how wrong the process was. Well some lawyers did and today they made a difference.

Wheelchair Patient in ALF Stabs to Death Other Patient in Wheelchair

Today, proof again that violence strikes anywhere and everywhere.

I have witnessed the Paralympic Games and seen how tough wheelchair basketball can be. But you tend to think of those persons who are confined to wheelchairs as individuals who grasp the preciousness of life.

It was not so yesterday in the East Village in New York, where an argument between two men in wheelchairs ended in deadly violence when one stabbed the other after being gashed on the head, police and witnesses said.

A resident of Barrier-Free Living, an assisted-living facility, said the killer managed to corner the victim because he was using a motorized wheelchair.

The battle started in the early morning hours when a 24-year-old resident smashed a 51-year-old with the footrest of his wheelchair.

"There was an argument over nothing," said Norberto Toledo, who is the victim's roommate.

The older man was enraged and some time later zoomed over to his victim - who was using a manually operated wheelchair - and repeatedly stabbed him with a homemade knife.

"[He] sped up to him and began stabbing him over and over again," Toledo, who said he watched the murder with guards on a security monitor. "We couldn't believe what we were seeing." I will just assume for the purposes of this article they watched the reruns, because you gotta say to yourself if they were watching it as it happened, then what the hell were these guards doing?

Cops recovered the knife at the scene and arrested the 51-year-old man. Remanded without bond, the preliminary charges are manslaughter. Don't know if the guy had been drinking. If he had, with a motorized wheelchair, they could charge him with DUI Manslaughter. Well, they would in Broward!

Thursday, December 17, 2009

Is Federal Public Defender Leading Candidate for Federal Judgeship?

John Pacenti is reporting in today's late afternoon Daily Business Review online update that Miami-Dade Assistant County Attorney Wifredo Ferrer and Federal Public Defender Kathleen Williams are front-runners to be President Obama’s picks for two open federal justice system positions in South Florida. Very encouraging.
According to those mysterious 'sources,'Ferrer, a county attorney with extensive federal experience, is the lead candidate to become the new U.S. attorney for the Southern District of Florida, according to Daily Business Review sources.
Williams, who has led the Federal Defender’s Office for 14 years, is the front-runner for a U.S. district court opening in Fort Lauderdale. Calls to references and colleagues of both Ferrer and Williams have been made on the presidential nominations in the last few weeks, while there appears to be little inquiry into the other candidates. They are being 'vetted'. God, I hope that means they don't have tax problems.
Other candidates for the U.S. attorney position are two former federal prosecutors, Kozyak Tropin & Throckmorton shareholder David Buckner and Miami-Dade Circuit Judge Daryl Trawick. Williams was picked as a finalist by Florida’s federal Judicial Nominating Commission along with Miami-Dade Circuit Judges Jerald Bagley and Robert Scola Jr.
I have no clue if these 'inimitable sources' are correct, but I do know this first and foremost: federal public defenders in the Bush administration did not find lots of federal judicial appointments come there way. The Obama Administration has opened the door to White House posts for those outside the loop for too long; competent and respectable agents of law and justice who served as criminal defense attorneys or public defenders. Soto Sotomayor proved it. I am grateful for the sea change. The tide has turned.

Monday, December 14, 2009

Nevada Says Male Prostitutes Have Legal Rights Too

What is good for the goose is now good for the gander in the state of Nevada.

Hello, Chicken Ranch, here I come! :-)

The Nevada State Board of Health, citing something called equal rights and the constitution, this body of laws that presume even steven for everyone- has made a change in brothel regulations that will allow men to be prostitutes—even for other men.

Prostitution has been legal in Nevada since 1971, but places like the Shady Lady Ranch have only been allowed to offer up mares, because health regulations required all prostitutes to receive "cervical" tests for STDs. Since guys don't have a cervix, they were essentially banned from being prostitutes. But on Friday, Shady Lady Ranch madam Bobbi Davis, armed with a team of ACLU lawyers, successfully petitioned the Nevada State Board of Health to allow men to receive urethral examinations instead. This cleared them to offer up their own services.

The Nevada Brothel Owners Association is not enthused about tapping into the new and growing market of people who like having sex with men There is a backlash emerging. A spokesman for the brothel association likened the changes to the brothel industry's "Pearl Harbor"; that it will damage the industry forever. He claimed that most Nevadans will negatively respond against legalized male prostitution, and its potential risks, thus impacting the historic success of the trade. I doubt it.

From a legal standpoint, you used to be able to say HIV was a health hazard caused by male on male sex. But it is a health hazard caused by unsafe sex. What is happening here is a leveling of the playing field for both men and women, a legal disposition that suggests you cannot discriminate based on sex. Realistically, then, you have to wonder what took so long to mandate- forgive the term- that guys have the same rights women have. Presumptively, I guess this also means lesbians can now contract out their services as well.

Equal rights for all never hurt anyone.

Sunday, December 13, 2009

Facebook Frenzy: Judges Can't Friend Friends who Are Lawyers

I have to defriend Judge Alfred E. Neumann. He cannot be my friend anymore.

The AP is reporting today that the state’s Judicial Ethics Advisory Committee has ruled that Florida's judges and lawyers should no longer "friend" each other on Facebook. This ruling is so stupid it is funny. The committee ruled Nov. 17 that online "friendships" could create the impression that lawyers are in a special position to influence their judge friends.

Right, because Jay Hurley finds out I went fishing on Saturday, I am going to catch a break on a bond if I come before him on Monday with an accused drug trafficker? This, pray tell, is what our ethics committee is worried about? More so than accusations like judges were getting kickbacks from lawyers for special PD appointments?

"Although Facebook has been used as an example in this opinion, the holding of the opinion would apply to any social networking site which requires the member of the site to approve the listing of a 'friend' or contact on the member's site," the opinion said.

A few on the committee dissented, saying judges should be allowed to have Facebook friends because those relationships are more like "a contact or acquaintance."

Although only the Florida Supreme Court can actually mandate what judges can do, most will likely follow the ruling out of an abundance of caution, said Craig Waters, spokesman for the Florida Supreme Court. Well, let me know if anyone wants to challenge this ludicrous decision. I think the crossovers on Facebook are remarkable. Heck, I have defendants and judges as friends. You think they are chatting about the case online? You think they even know who each other is? Heck, I have friends with 3500 friends. I gave up even trying to figure out who all my friends are.

Judge Thomas McGrady, the chief of the sixth judicial circuit in Pinellas County, said he understands why the committee came to its conclusion: Judges need to appear impartial.

"We as judges can still be good judges and still have friends. Part of our job is to not let that friendship interfere in any way with our decisions," he said. "But others in the public who see judges listing a lawyer as a friend on facebook, they may think that because they are your friend, they will be treated differently." Grow up. There are a lot more serious things to worry about.

McGrady, who is sending a copy of the ruling to the 69 judges in his circuit, said this potential conflict of interest is why he doesn't have a Facebook page. Either that or he does not how to use a computer.

Tru TV Captures Tragedy as Young Suspect Chokes to Death on Bag of Marijuana

A young man died in Panama City Beach this week because pot is still illegal in Florida. Attempting to avoid an arrest for possession of marijuana, he stuffed a plastic bag full of weed down his throat and choked to death. And Tru TV was there to capture it all.

Yes, he died because he made stupid choices, but he would be alive if our laws were more sophisticated.

Andrew Grande was only 23 and got into an altercation and then a physical disturbance with his girlfriend last Friday. The police responded to the alleged assault, only to find out that the young man was fleeing.

The preliminary reports indicate that deputies caught up to Grande and confronted him, placing handcuffs on one of his wrists. But he struggled, and the police allege he attempted to place something in his mouth.

A video recording exists of part of the encounter, and one of the videos opens with an officer shouting: “Spit it Out.”

The recording shows Grande on the ground while three deputies hold him down. He is wheezing.

The rest of the incident is caught on two video recordings for Tru TV and on a sheriff’s dashboard camera. A three-person crew was riding with deputies during the incident and caught most of it. The Sheriff’s Office released the recordings Friday. Tru TV officials did not return calls seeking comment.

One of the Bay County Sheriff’s deputies is heard talking by radio with a dispatcher.
“He swallowed something,” the deputy says. Grande tries, desperately, to talk. The deputies have Grande’s right hand behind his back. He attempts to get up.

Deputies tell him to stop resisting or they will tase him, but he gets to his feet. They tase him and he immediately rips the stun gun’s prongs out of his chest. He was choking to death. He had something else on his mind.
He falls to the ground. While seated, he puts his hand in his mouth and down his throat in what appears to be an attempt to vomit. When that does not succeed, Grande slaps his hand against the concrete and then both of his hands against his chest.
“I can’t breathe,” he says. “I can’t breathe.”
The deputies perform the Heimlich maneuver, but they cannot get the object out of his throat.
“Let us help you, man,” one of them shouts. “Hang in there.”

After emergency medical technicians arrived, they removed the bag of marijuana from his throat with forceps, officials said. Grande was taken to Bay Medical Center and pronounced dead at the hospital, according to a Sheriff’s Office news release. An autopsy was performed Friday afternoon and the preliminary cause of death is asphyxia due to obstruction of the airway by a foreign material, officials said.

Bay County Sheriff’s officials said three deputies were involved in the incident, Sgt. Billy Byrd, Deputy Rick Williams and Deputy David Higgins. At a press conference Friday afternoon, Sheriff Frank McKeithen said he felt bad for Grande’s family and for the deputies involved. I bet.

“These guys watched this person die and there was absolutely nothing they could do about it,” McKeithen said. To live with this forever, not easy.

He said the deputies did not realize at first that Grande was choking and they initially believed he was overdosing. Which explains the use of the taser, how then?

“It could have been handled by compliance,” McKeithen said. “It pretty much ended up with him taking his own life.” Not really. Hollow excuse. Obviously, he wanted to live. He did not even want to go to jail. Thus, he was trying to hide the pot. So he did not 'take his own life.'
The bottom line and the real message is how stupid prohibition is. If pot were not foolishly illegal, subjecting someone to arrest for nominal possession, maybe Andrew Grande would be alive today.

A Letter to the President for My Mom

Jesse Kent

Norm Kent
110 Southeast 6th Street Suite 1970
Fort Lauderdale, Fl 33301
954 763 1900

File Number X-XXX-

Lillie Jackson
Department of Veterans Affairs
Regional Office and Insurance Center
PO Box 42932
Philadelphia PA 19101

President Barack Obama
The White House
1600 Pennsylvania Avenue
Washington, D.C,

Secretary of Veterans Affairs
Eric K. Shinseki
810 Vermont Avenue NW
Washington, DC 20420

Dear Ms. Jackson and Concerned Public Servants,

My name is Norm Kent. I am an attorney in Fort Lauderdale, writing on behalf of my mother, Gertrude, living in a nursing home in Sunrise, Florida. She is a surviving spouse of a veteran, a soldier, and an American hero who fought overseas to defend freedom here at home.

On or about February of this year, I processed an application for Widow’s Pension Benefits on behalf of Mom. My dad, Jesse Kent, served bravely during World War II, in the 376th Infantry, and rose from the rank of Private First Class to Staff Sergeant, up through his discharge at the Separation Center in Fort Dix on August 31, 1945. I have enclosed Dad’s picture when he was in the service overseas for you to see. I keep it hanging in my office.

When my dad came home from combat duty overseas in Europe, from various battles in sundry places to landing on Utah Beach with the Fighting 94th on D Day, his first son, and my older brother- Richard, had already been born. Dad served admirably, and as a member of the Antitank Company, was awarded a Certificate of Service for exemplary conduct against the German forces on the battlefield in Germany, early in 1945. It was awarded to him by Captain Frederick Bucky, Jr., the Infantry Adjutant.

Dad would often tell us stories of combat operations, and what it was like to be a soldier living in a field on Creamed Chipped Beef; how he wanted to make it home to see his son. He did, and he raised three of them, who survive him today.

My brothers, Alan and Richard, and me, well, we are most proud of our Dad for having earned the Bronze Star Medal on February 4, 1944 for meritorious achievement in ground operations against the enemy in the European Theater of Operations, during the Rhineland Campaign,. It was awarded by the President of the United States of America. That star, and the plaque evidencing it, also hangs proudly in my office. These are the memories of my dad, who passed away too young, in July of 1987, only 72 years of age.

Do me a favor. As you respond to my letter, think of my dad, won’t you? And think of his widow, my mom, in a nursing home, turning 88 years old last week. My family, including my older brother Richard, who was born in 1944 while Dad was still fighting overseas, celebrated Thanksgiving with her just a few weeks ago.

When I visit my Dad at his gravesite next week, for the Holidays, when I wheel my mom to his stone in her wheelchair, please tell me how I can explain to him why it has taken the United States of America over ten months to process his widow’s claim for a pension benefit.

You see, on October 1st of this year, after waiting eight months, I received a letter from the Department of Veterans Affairs that you had in fact acquired everything you needed to process the claim, but remarkably, the correspondence stated the claim could not go forward because my dad’s death certificate did not sufficiently indicate the cause of his death.

Dutifully, as a good citizen, trying to accommodate the bureaucracy that is our government- and the rules that are so particularized they are virtually insane, I rushed out to the Bureau of Vital Statistics and swiftly re-sent an updated death certificate within a week. Apparently, it got there too fast for you, because two months have now passed, and today, on December 17, I received the following note from the VA in Philadelphia:

“We are still processing your application for PENSION. We apologize for the delay.”

You said the same thing to me on April 9 of this year:

“It is our sincere desire to decide your case promptly. However, we have a great number of claims, so action on yours may be delayed.”

I wish you all a Happy Holidays, of course. I hope you enjoy this time with your family and friends. But I am here to tell you I do not accept your apology, and I find your delays offensive and unacceptable. It should not take 65 days for the widow of a United States veteran who put his life at risk for this country 65 years ago to collect the benefits she is lawfully entitled to, let alone over ten months. So NO, then, I DO NOT accept your apology.

An America that cared more about its veterans would consider the elderly women who survived them, many of whom do not have sons who are lawyers to help them find marriage certificates from 75 years ago, discharge certificates from 65 years ago, or death certificates from 25 or 30 years ago. The process you utilize is not just inexcusably delayed, it is difficult and arduous for so many who are so unable.

I was fascinated to learn that there are private for profit financial service companies that aid those who cannot help themselves; that instead of our government reaching out, there are profiteers taking away. This is their right to work for a profit to serve a public need. But if we had a government that was serving public needs companies like this would not need to exist. Somehow I just don't think that our soldiers who lose their lives overseas in battles for our freedoms ever anticipated that their widows would have to cut checks to private companies to process benefit applications. I don't think it was the last thing on their mind as they took a bullet for the red, white, and blue.

My Dad was very proud of the country he served and the life he lived. He would not be so proud of the legacy you are leaving his wife and thousands of other widows who are told up front when they apply for relief for benefits from the Human Services Department the wait is long and the delays great; that is ‘just the way it is.’ That is the way it must not be.

For too long too many of our citizens have accepted the apathy without challenging it. But that is not the way my dad and hundreds of thousands of other veterans helped us win a war. They did not just lie down and take it. So do me a favor, just mark down in your books that I will not join the list of those who quietly acquiesce to administrative neglect and inexhaustible delays as routine practice. I will prosecute my mom’s rights with the same zeal and energy that my dad, her husband, fought for this country. I will not lie down and look the other way at indifference.

Finally, let me say I am not trying to threaten anyone to win one case for one woman, who matters an awful lot to me. I am trying to send a message and press a claim that the program you are administering is a colossal embarrassment to the citizens of the United States and the persons it is intended to serve. Ten months? Please! It speaks for itself. You need to do better.

You see, you are still asking soldiers to fight and die for our country, in wars and battles that are far more questionable then World War II. Your decisions are making new widows who also will one day have to negotiate these elaborate requirements for dependency and disability. Can we do something today to make it easier on them tomorrow? As long as you are sending soldiers to battle, will you consider those who they are leaving behind?


Norm Kent

Friday, December 11, 2009

Stark Life in a Prison Cell

In case you missed the article in the Sun Sentinel on Monday, written jointly by Tonya Alanyez and Paula McMahon, I blog it for your consideration. The piece relates the stark and empty life of a prisoner in the Miami Federal Detention Center. As to Scott Rothstein, he goes from being the Baron of Las Olas to a bare and barren existence; from the epicenter of energy to the emptiness of a jail cell. Not an easy life for someone who lived so fast and easy. Well captured by Tonya and Paula.

Thursday, December 10, 2009

Judge Seeks Young Girls on Film

A judge in Florida wants footage to be turned over to the court so he can decide on a motion to dismiss a civil suit against "Girls Gone Wild" founder Joe Francis. He has also subpoenaed four pounds of buttered popcorn from Gateway Cinemas.

U.S. District Judge Richard Smoak on Wednesday ordered all relevant videos be handed to him so he can make a final ruling on the motion by Francis' lawyers. Smoak said the motion relies on the plaintiff's actions in the videos.

Four women filed suit last year. They said they were 13 to 17 years old when they were filmed in stages of undress or engaged in sexual activity by Francis' company, which produces the "Girls Gone Wild" video series. The plaintiffs are now adults.

Francis' motion argues the actions on film did not violate Florida law. Trial is scheduled for February. I am going to have to find out which attorneys got this case and how they explained to their wives what kind of research they had to do, assuming of course, counsel are of the male gender. What if it was a gay guy? That could be very frustrating.

High Court Rolling in Miranda Waters Again

A good AP article if you have missed it. I can think of a few county court judges who might want to read this. Should worry more about the law then the color of their robes.

WASHINGTON (AP) — The Supreme Court on Monday seemed headed toward telling police they have to explicitly warn criminal suspects that their lawyer can be present during any interrogation.

The arguments in front of the justices were the latest over how explicit the Miranda warning rights have to be, as justices debated whether the warnings police gave Kevin Dwayne Powell made clear to him that he could have a lawyer present while being interrogated by police.

Powell, a convicted felon, was convicted of illegally possessing a firearm after telling police he bought the weapon "off the street" for $150 for his protection. Before his confession, Powell signed a Miranda statement that included the statements "You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."

The Florida Supreme Court overturned the conviction on grounds the Tampa police didn't adequately convey to Powell that he was allowed to have a lawyer with him during questioning.
Joseph W. Jacquot, Florida deputy attorney general, argued that the warning given Powell "expresses all the rights required under Miranda."

Justice Stephen Breyer clearly disagreed.

"Aren't you supposed to tell this person, that unlike a grand jury, you have a right to have the lawyer with you during interrogation?" Breyer said. "I mean, it isn't as if that was said in passing in Miranda. They wrote eight paragraphs about it. And I just wonder, where does it say in this warning, you have the right to have the lawyer with you during the interrogation?"

Different courts have came down on different side on what exactly should be said, Justice Sonia Sotomayor said.

"We've got a split of circuit courts and state courts on whether this reasonably conveys or not. Shouldn't that be enough of an ambiguity for us to conclude it can't reasonably convey, if there's this many courts holding that it doesn't?" Justice Sonia Sotomayor said.

Powell's lawyer, Deborah K. Brueckheimer, said that the warning Powell was given from Tampa, police gave him the impression that "once questioning starts, that he has no right to consult with a lawyer anymore, and it certainly doesn't tell him that he has the right to the presence of an attorney with him in an interrogation room, where the coercion takes on a highly new meaning."
Justice Scalia called Brueckheimer's argument "angels dancing on the head of a pin."

"You are saying, 'Oh, if he had only known. Oh, if I knew that I could have an attorney present during the interview, well, that would have been a different kettle of fish and I would never have confessed,"' Scalia said. "I mean, doesn't that seem to you quite fantastic?"

Miranda rights have been endlessly litigated since they first came into being in 1966. The courts require police to tell suspects they have the right to remain silent and the rights to have a lawyer represent them, even if they can't afford one. But those requirements likely will continue to be parsed by lawyers and judges.

For example, Justice Samuel Alito pointed out that most police start off Miranda rights by saying "You have the right to remain silent." But, Alito said, what happens if someone begins talking to the police and then decides that they want to be silent?

"Once you break your silence, there is nothing in there that says you have the right to resume your silence," Alito said.

"We could write that down. It could be the next case," Justice Anthony Kennedy said to laughter.

The case is Florida v. Powell, 08-1175. Note, Florida, where agencies like FLPD and BSO have had to change their Miranda forms for material omissions in the advisements. One of the last great wins for Ellis Rubin, the Commander.

My take? Well, let' see. I am a criminal defense lawyer. Got a stuffed fish in my office. Says on the plaque "I would not be here had I shut my mouth." Enough said? Yup. Kinda like some guy goes up to President Warren Harding, known for very few words, at a ballgame. Yeah, a hundred years ago you could walk up to a President. Now you can just go to the White House to see them if you do reality shows.

So a dude says to Mr. Harding: "I made a bet with my buddy I could get you to say three words to me, Mr. Harding." The President turns to him, says "You lose." So when you around the boys in blue, keep a smile in your hearts and a zipper on your lips.

Abramson Back in the Saddle Again

It was one of the most bizarre situations I had ever heard of in my 35 years as a lawyer. Yeah, 35 years, since 1975.

William Abramson, a Boca attorney, brazen, bold, controversial, cutting edge, gives up his law practice to run for judge. He wins a bitterly contested close race after some crazy recount issues.

The guy he beats is none other than the jurist who pissed him off at trial, and who he then ran against. But the judge has the last laugh, at least up until now. He filed Bar complaints against Abramson's courtroom conduct, accusing him of significant acts of misbehavior. The Bar buys into it. Our own Tom Lynch is the referee. He suggests sanctions but nothing all too severe. The Bar says no, we want blood, and Abramson gets hammered with a suspension, greater than 90 days, requiring him to redo the whole deal, bar exam, rehab, groveling and the works.

But worse, now you have a court that says, hey dude you are no longer an attorney, so you are therefore barred him from taking the Palm Beach Circuit judicial seat you won. Tough break. You no be attorney, you no can be judge. Truly, one of the weirdest and wildest legal episodes in South Florida jurisprudential history, more exciting than old Joe Price shooting out a clock in his courtroom or dear June Johnson not wanting to deal with a metal detector cause it impacted on 'her aura.'

Well, Abramson is back, though I don't know where he is going to be. Cut his hair to run for judge. Don't know if he grew it back. Don't care. But the Florida Supreme Court entered an order last week stating Abramson’s law license was reinstated, and he was placed on 12 months probation, probably mowing x-Judge Wennet's lawn.

Anyway, I always felt Abramson got burned by the Supreme Court ruling; that while he should have been denied his seat by virtue of his temporary disbarment, he ought to have it back when he was reinstated- that whoever the Governor appointed should have been limited to a term as a placeholder, equivalent to Abramson's incapacity to 'hold office'. Thus, now that he is reinstated, I am not sure he is not entitled to that judicial seat he won in an election. He should try suing for it. What has he got to lose. Maybe Wennet could do the mediation.

I have no idea if Abramson will run again for judge, he is still pretty young, but I would not want to oppose him. Gotta believe he has a score to settle. Here is a link to our old links.

Wednesday, December 9, 2009

Say It Ain't So, Howard

Okay, just a couple of personal notes as we begin the Holidays..

First, thanks to the BACDL, hosting a very nice party at the Seventh Street Wine Company, near the Courthouse; a great place to buy wine for the holidays.

Second, congratulations to David Haimes, a federal prosecutor appointed to a judgeship this week by Governor Christ. He is a seasoned lawyer with experience.

Third, tell me please, Howard Forman, that you really do not charge attorneys two dollars to have a clerk look up a case number. That is about as stupid and insulting a revenue producing agent as you can generate. A lawyer in a hurry comes in to your office and already has to pay the clerk for the copy of the PC sheet. I can see that. Even at a buck a page. Which is a joke in the present era when a photocopy costs less than a penny. But to tell your clerks they are to collect monies from an attorney just for looking up the case number is greed greed greed and that is not good good good. One other thing. Would it hurt so much if an indigent pro se client came in and asked for their pc sheet and had no money, if that was given to them for free?

Fourth, more on the DUI drug court my blog has been pushing. Seems my suggestion has been floating around the courthouse long before I proposed it. In fact, certain judges have even attended a program out of state to certify their ability to manage and run the concept. Only one elected officeholder in the county seems to oppose it. Change is good, Mr. Satz. Go with the flow. If we want to reduce DUI recidivism, then let's reduce the number of alcoholics first.

Fifth, speaking of driving, fair warning to all. The lobbyists for driving schools have snaked their way into the legislative pocketbooks or caught the majority with lots of naked photos. Seems that more laws have made their way onto the books surreptitiously, which strip away again the power of traffic hearing officers to exercise independent discretion. So get ready for this: any new tickets you or your clients get for using an HOV lane, driving through a red light, or some other more serious offenses REQUIRE driving school regardless of what the traffic judge does.

Washington DC Will Get Medical Marijuana

Publisher Norm Kent visiting a legal medical dispensary in Oakland, California

Legal pot now closer to home.

House and Senate negotiations for the 2010 Appropriations bill have been completed, and Congress has opened the door to funding a law one right wing reprsentative thwarted ten years ago. It is medical marijuana time in the Capitol. Here's the deal. Brad Cohen will want to know.

In 1998, DC voters overwhelmingly passed a medical marijuana bill, but Congressional anti-drug warriors- led by Rep. Bob Barr of Georgia- prevented DC from spending any federal money to count the votes (that’s right, in our democracy’s capital, our leaders conspired to prevent citizens from counting votes in a legal election).

When that was deemed unconstitutional by the courts, they spent the money to count the votes, showing that 69% of DC supported medical marijuana. So Rep. Barr created the “Barr Amendment” that prevented DC from spending any money to implement the medical marijuana program they had voted in.

Well, today’s 2010 Appropriations bill changes all that. In addition to removing bans on abortion, domestic partnerships, and needle exchange, Congress has given the go-ahead to begin implementing DC medical marijuana! I am getting back that apartment on Connecticut Avenue.

The combined bills in the Senate and House refect progressive changes by our Congress, removing special restrictions on the District of Columbia: eliminates a prohibition on the use of local tax funds for abortion, thereby putting the District in the same position as the 50 states. Also allows the District to implement the '98 referendum on use of marijuana for medical purposes as has been done in other states, and it allows use of Federal funds for needle exchange programs except in locations considered inappropriate by District authorities, and discontinues a ban on the use of funds in the bill for domestic partnership registration and benefits. In one fell swoop, four progressive pieces of legislation George Bush and his cohorts in the Republican controlled Congress never allowed.

DC’s medical marijuana bill was written with the same sort of open language as was passed in California… will we be seeing marijuana dispensaries on K Street anytime soon? Yes, he said, I do believe so!

Sunday, December 6, 2009

West Virginia Man Sues Over Commercial Use of Mugshot

A man whose mugshot won a measure of Internet fame is planning to sue companies he says are profiting from the image.

Patrick Tribett was arrested in Bellaire, Ohio, in 2005. Police say he had been huffing the fumes from gold spraypaint, and the lower half of his face was golden in his mugshot.

New Martinsville lawyer H. John Rogers says the image has appeared on T-shirts, coffee mugs and even a billboard in Europe. Rogers says he's preparing lawsuits against four companies for using Tribett's image for financial gain.

Tribett's photo, as you can see above, shows his face partially covered with gold spray paint following his 'huffing'. It appeared in places like The Smoking Gun, which collects notable mug shots. It immediately became an "iconic mug shot" that gained him "worldwide infamy."

An entire Tribett mug shot paraphernalia marketplace then developed, with items such as T-shirts and coffee mugs being offered up on, Cafe Press and Hot Toys, a Chinese manufacturer. TSG reports that T-shirts with Tribett's iconic photo are currently being sold on for about $20.

In other words, his commercial likeness is being appropriated for another's pecuniary use. Can't do that. Gotta compensate the dude, right? Well, we are about to find out. I suppose if I was doing one of those for profit totally self indulging legal blogs this is where I would come in and say the "law offices of Kent and Cormican represent you in protecting your intellectual copyright." Uh, don't count on it. If you are stupid enough to get yourself arrested sniffing super glue and it sticks to your nose, call a surgeon, not a lawyer.

What about that Florida law which says you cannot commercially profit from your crimes? Would that estop Tribett from collecting damages in Florida? Ric Rosenbaum had to litigate that issue when Danny Rolling, a Gainesville killer, was trying to sell some of his paintings.

Well, Mr. Tribett, you never should have been sniffing those fumes, but now the spray may indeed enrich you.

Remembering Richard Essen

An obituary I am not going to write.
I will leave that to my friend Ellie Brecher, who did a yeoman's piece on Richard in Friday's Herald.

I just wanted to say goodbye to a larger than life personable gentleman who made my radio show, and Steve Kane's, so much more entertaining with his presence.

As Richard's wife says, in some respects, defending DUI clients was more reprehensible then defending drug dealers. But Mr. Essen did so with dignity, class, and the willingness to challenge and defy the establishment, with its litany of supposed perfect intoxilysers, untainted blood draws, and esteemed regulatory standards. By being a good lawyer, Richard found flaws anywhere and everywhere. He found reasonable doubt where others did not. And today we all prosper from his work. But though I have been to his office, and discussed countless cases with him, I really did not know Richard as a lawyer.

I pretty much met him after his days in court were over, and he would come on to my radio show as a guest, or host his own hour with Steve Kane on Fridays. Effervescent, energetic, and eclectic, with a mind that was wandering and filled with wonder, he was an enchanting person to chat with, break bread with. Proud to have been a lawyer, a dad, an author, and a philanthropist, he was also a salesman, marketeer for lawyers, and a pioneer in challenging the establishment.

He died too young, a week ago at only 70 years of age. And I add in passing, you have to watch yourself. No matter how good a mind you have, and Richard was in Mensa, you have to maintain your body. Goodbye, my friend.

Tuesday, December 1, 2009

20 Things We Can Learn From 'The Scott Rothscheme Scandals'

by Norm Kent

1. Greed is not Good.

2. Appearance is not Everything.

3. Power is not what it is cracked up to be.

4. If it looks too good to be true, it is in fact not true, and we knew this already did we not?

5. If a guy running a law firm signs his memos, 'Love ya kidzzzzz' maybe there is something very wrong at the top, and big shot lawyers should have seen this coming. Somehow I don't see William Scherer signing his memos to his firm thusly.

6. Lots of very wealthy people/investors can be very stupid. Ed Morse, come on down.

7. WC Fields was right when he said there is a sucker born every minute. If he had lived in South Florida instead of Philly, he might have said one is born every 20 seconds. Selling settlements on sex discrimination cases? There not being enough pineapples in the pineapple juice? 23 million for an interior decorating scheme? And people think I smoke bad weed?

8. Real Mafia guys lay low and do not show off their watches, cars, or homes or tell people they are part of the Mafia.

9. Brittany, I was right the first time when I told you only 'Schmucks' threaten reporters. Should have known right there and then he was covering and hiding something. But think what kind of idiot he must really be, knowing for years how he had done what he had done and he would nevertheless continue to bring such limelight and attention to himself.

10. People who comment on blogs can be incisive and informative but even more are hateful and ruthless.

11. And this one I learned from others accused of similar acts: "As long as you flash money and pay the bills, no one cares and everyone will look the other way."

12. There are no designer jeans or Cuban cigars in jail. Or reporters to call and scream at.

13. Doing favors for your boss sometimes means not doing a favor for yourself. When the illegal campaign contributions and kickbacks are unveiled; when the lawyers on staff who covered for Rothstein are exposed, there will be more ruined careers and Florida Bar cards torn up.

14. Just because you have your picture taken with a sports star does not make you one. Let me ask you this: do you think Alonzo Mourning had a picture of Scott Rothstein in his living room?

15. 'Bling' is blinding whether you are wearing the jewelry or stuffing it in your pocket because someone gave it to you.

16. Politicians are whores who will do anything for money, including knowingly and willingly circumventing campaign contribution laws by taking donations that violate the purpose and spirit of the statutes. Like the $500 maximum contribution. Please! How many of our elected office holders or losing candidates willingly took $500 from each of the 20 corporations solely owned by SR to thus evade mandatory campaign limits?

17. J. Herbert Burke. Doug Danziger. Scott Cowan. Josephus Eggleston, I presume. The Alderdices. Gold Bullion. Sheriffs past. County Commissioners present. School Board members. Judges. Lobbyists. Ponzi Scheme City. The good old Port Commission with lavish parties. Union officials.Stop looking at the Court brooms in Miami. Broward is really corrupt too. Has Been. Will Be.

18. Too many people do not want less corruption.
They just want more of a chance to be part of it.

19. No amount of money today is worth your freedom tomorrow.

20. The 'right' thing is not to do the wrong thing in the first place.

Then you do not wind up as a Defendant:

21-30 Feel free to enter in the comments section your own proverbs...

Sunday, November 29, 2009

Middle Finger Conviction Vacated AND Client Wins False Arrest Suit to Boot!

24 hours after blogging about a case where a Public Defender challenged a prosecution based on his client’s use of a four letter word, I have stumbled upon yet another 'middle finger episode,' which has led to a vacated verdict, a false arrest suit, and a judgment for the accused.

On April 10, 2006, David Hackbart was attempting to parallel park his car on a street in Pittsburgh when a car pulled up behind him, blocking his path. Hackbart responded by giving the driver behind him "the middle finger," and promptly heard another voice outside his car tell him, “Don’t flip him off.”

Hackbart, of course, then gave the finger to the interloper who he would soon learn was Sgt. Brian Elledge of the Pittsburgh Police Department, seated in his patrol car at the time. Law Man then issued Hackbart a citation charging him with violating Pennsylvania’s disorderly conduct statute based on Hackbart's giving the middle finger to Sgt. Elledge and the other driver.

Hackbart challenged the citation but at his preliminary hearing, a district justice found him guilty of violating the disorderly conduct statute and imposed a fine and court costs totaling $119.75. Hackbart appealed the decision and on Oct. 17, 2006, the Allegheny County District Attorney’s Office finally decided to withdraw the charges against him, and the sentence was vacated.

Enter the ACLU. They filed a federal civil rights lawsuit against the City of Pittsburgh and Sgt. Elledge on Hackbart's behalf. The complaint alleged, among other things, that the defendants violated Hackbart's rights under the First Amendment "to be free from criminal prosecution or to be retaliated against in any way for engaging in constitutionally protected speech."

He won.

Sara Rose, an ACLU staff attorney, stated that "the law is clear that using one's middle finger to express discontent or frustration is expressive conduct that is protected by the First Amendment. The City has an obligation to train its officers to respect citizens' free-speech rights."

Pittsburgh has tentatively agreed to pay $50,000 ($10,000 to Hackbart, $40,000 to the ACLU and lawyers' fees) to settle his lawsuit. As part of the settlement, the city promised to "train its officers in recognizing when they are violating someone's civil rights, including taking action against anyone who flips them off," the Pittsburgh Post-Gazette reports.

The Post-Gazette also notes that this latest blow to law enforcement's effort not to have people give them the finger is part of a growing line of such losses. In the most high-profile example, the 9th U.S. Circuit Court of Appeals ruled in Duran v. City of Douglas, AZ in 1990 that a man pulled over in Douglas for flipping off and swearing at a police officer did not break the law.

Saturday, November 28, 2009

Thanksgiving: A Cinematic Reflection

100 Movie Quotes (American Film Institute Top 100 Movies)


Spent a little bit of the weekend watching old films, and reflecting on the holidays with my extended family. It's different now, than when I was a kid. As a child, you would gather with your parents in a small nuclear family of your aunts and uncles, brothers and sisters, grandmothers and grandfathers.

As an adult, that family widens, and your brothers and sisters have kids, fathers and mothers, like aunts and uncles have passed. The kids have kids and they are no longer all ethnically or geographically the same. Your family has moved from a little corner of Brooklyn to South Florida and Seattle, from the Catskills to the coasts of California. This past week, we celebrated Mom's birthday of 88 years, but lost our cousin, Nancy, at only 60, in Massachusetts. Cancer.

And just thought I would put something on the blog that spanned generations also. Movies capture Americana, our imagination, and link our past with our present. Take ten minutes and see how many of these films you can not only remember, but where you were and who you were with when you saw them; what stage of your life it connects to. Memories? Could this be the end of Rico? I am making you an offer you can't refuse. Win one for the Gipper.

You can't handle the truth. Beauty killed the Beast. Phone Home. Failure to Commoonicate. Play it Again, Sam. No Crying in Baseball. I coulda' been a contender. All great lines, but on this Thanksgiving, I hope you too, like Lou Gehrig, feel as if you were 'the luckiest person on Earth.' May the Force Be With You.

Friday, November 27, 2009

Give Children the Right to Counsel in Dependency Proceedings

Children Rights Advocate Howard Talenfeld

Good article by Jan Pudlow in the Florida Bar News, 12/1/2009 issue. The link below at the end of this blog.

“When the state takes a child out of their home and into state custody, it seems to me that every single child that is the main focus of such a process is entitled to a lawyer to represent their rights against the state,” Rosemary Barkett, U.S. 11th Circuit Court of Appeals judge, told members of The Florida Bar Legal Needs of Children Committee last week.

Did you know that when kids are taken out of a home and placed into state custody, they technically have never had a right to an attorney? That no one is formally appointed to represent their rights against the state?

A number of child care advocates want to change that, including Rosemary Barkett, U.S. 11th Circuit Court of Appeals judge, Howard Talenfeld, chair of the Legal Needs of Children Committee and Bar President Jesse Diner.

What amazes me is that this is not the law already. Let’s hope the legislature changes that soon. The next step is presenting the proposed bill — that also has the support of the Public Interest Law Section — to the Legislation Committee and the Board of Governors meeting December 11 in Amelia Island, so that the Bar may approve it as an official position to lobby the Legislature in 2010. Apparently, this is a battle that has been going on for ten years. How can that be?

As Justice Barkett stated: “Having a lawyer challenge your authority, question your decision, hear what you do, is not a pleasant thing. But that is the system that we have, as long as juvenile dependency proceedings are in a court of law. . . .” I read the Bar News article which suggests that the financial component of providing legal counsel to children is potentially prohibitive, to the frightening tune of $100 million statewide. Sounds scary, but it is just a Powerball game away, really.

The bottom line is that the LAW does not provide for expedience as a grounds for denying someone a fundamental constitutional right. I do not want to say that all courts do not have the best interests of children at heart, but as we live in a country that gives accused criminals the right to an advocate, should we not afford the same breadth of legal protection to innocent children? Have children in this state not been ignored long enough?

Four Letter 'F' Word Faces Constitutional Challenge After Colorado Arrest

Free Speech is my thing, so this story is a natural for the Broward Law Blog, even though it emerges from a high school in Colorado. This piece, and I have no intent to be offensive, is about a 'Fucking' Motion to Dismiss. Stay till the end and you will find the Broward connection.

Here is the deal. A teenager with a Marlboro ran into a problem with smoking in the boys room of a local school, and he was charged with a crime, a class three misdemeanor, but apparently not for smoking or lighting up.

Instead, the student was faced with the charge of 'interference with staff, faculty, or students of an educational institution' by engaging in a verbal torrent of expletives towards the principal of the school after the incident. He proceeded, in anger, to call out the principal thusly: "you 'fucker,' you 'fucking fag'." Do not know if the student was suspended or expelled but he was criminally prosecuted.

That is where our hero of the day, Colorado Public Defender Eric Vanata comes into the picture. Charged with the responsibility of defending the student on the bogus charge, he writes a sophisticated brief on the historical and routine use of the word 'fuck', and how it is so much a part of the American culture, it cannot be deemed constitutionally offensive, illegal, or prohibited. He does so by tracing the origin of the word, and discussing, in a literate, sardonic, and accurate way, how pervasive the word is in our culture. How it permeates all walks of life, as an adverb, noun, or adjective.

As other bloggers have already picked up on this, I have to steal their line- that there is no way I can do this f-ing justice.

So here it is, the entire Motion to Dismiss the Constitutionality of Fuck, "Fucker" and "Fucking Fag"- in pdf form, from Colorado v. C.L., a Child (Dist. Ct. of Larimer County, Co.)

Johnny Carson once said there is no such thing as an original joke. So here is your Broward County anecdote, with a dedication to the late jurist, Judge John King. I know that both Public Defender Howard Finkelstein and I are old enough to remember him. And years ago there was a motorcylce cop in Fort Lauderdale, the late Charley Bruce, who arrested one of our clients for cursing him out and shouting expletives at him- which was an easy thing to do if you knew Charlie. But this ponytailed young PD named Finkelstein came up with a motion to dismiss the arrest on free speech grounds, and Judge King agreed. I guess Broward is just a few years ahead of Colorado on this one. I will post Howard's motion next week on this blog, thirty years later.