Recent Broward Law Blog Features

Saturday, January 31, 2009

Boys Just Wanna Have Fun

Johnny Carson used to say there is no such thing as a new joke; just old jokes reborn, revived, restored, and retold. As you trespass through the years, you see how many battles that are being fought today have been fought yesterday. In fact, I think you know you are getting old when you not only see the first remake of a movie, but the second.

It has been a while since we read about a Palm Beach ordinance which snagged a lawyer who used to jog shirtless in Palm Beach. Nevertheless, I have a vague recollection of the furor and stir that it caused the uppercrust community of Palm Beach Lakes Boulevard.

It has even been a while since the city of Hollywood in Broward enforced that ordinance banning men from dancing with their private parts in a 'turgid state.' But as I was surfing through the Blogosphere for features for our Broward Law Blog, I came across an interesting ordinance out of Easton, Maryland on a smooth blog called Legal Juice.

Not only is it illegal for men to go topless in Easton, Maryland, it's illegal for "any person." Babies, too? Boys ? After all, equal enforcement! Here's the law:
Sec. 18-9. Required dress, upper torso, penalty.

(a) It shall be unlawful for any person, whether male or female, to appear upon the streets, sidewalks and highways, or in any public building of the Town of Easton unless he or she is wearing a shirt, blouse or similar article of wearing apparel designed to cover the upper torso of said person.

(b) The penalty for violation of this Section shall be ten (10) days in jail or a fine of not more than One Hundred Dollars($100.00). (Ord. No. 70,  1 and 2, 6/17/74.)10 days in jail! Here's a link to the Town Code.

Good to know that community has no other problems to worry about, huh? I bet they have a baggy pants ordinance, too. Please, laws like this are soooooooooo stuuuuuuuuuuuuuuuupid, why do we bother? Why do we bother?

WSJ Blog Addresses 'Testalying'

Since The Broward Law Blog has only made its debut this month, we have to catch up on two hundred years of legal history, or at least the two hundred years of setbacks the George Bush Supreme Court has helped create in the past eight years.

Earlier this month, in a month that will live in Fourth Amendment infamy, the Supreme Court granted an exception to the exclusionary rule by holding that the prosecution of an Alabama man for drug- and firearm-possession charges was valid, even though the contraband was found after the man was wrongly arrested and searched, and for all I know, waterboarded. Anyway, police officers had mistakenly thought he was subject to an arrest warrant. So they said.

Throwing out evidence because of wrongful searches and arrests "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free," wrote Chief Justice John Roberts. Oh, man, that is not what the Fourth Amendment says. It says people SHALL be free in their homes and on their person from illegal searches and seizures, and the remedy for that has been and has got to be the exclusion of evidence. One other remedy might be picking better judges.

One of the useful legal blogs I post on the sidebar for your reading perusal is the Wall Street Journal Blog. In a column authored by Amir Efrati, numerous legal sources express their views on the truthfulness of law enforcement officers while testifying, as well as the Exclusionary Rule, and its diminution in recent years.

It's a good read, and here is the link:

Guest Blogger Kris Krane: Change Drug Policy Laws

The Broward Law Blog welcomes the Executive Director of Students for a Sensible Drug Policy with a commentary on the need to change our nation's drug laws. Many of my own views on this issue are best expressed at, my personal ranting page of collected columns. But here we endorse wholeheartedly and welcome Kris's call for help:

'George W. Bush may be relaxing at his ranch in Texas, but many of his friends are still waging a war on public health at home and abroad. Believe it or not, the day after President Obama took his oath of office, Bush-appointed cops raided a medical marijuana collective in California, despite our new president's pledge to end those cruel attacks on patients! And right now, U.S. delegates to the United Nations are stonewalling efforts to include life-saving, harm reduction measures in the new global drug strategy, even though Obama publicly supports those measures. (This includes needle exchange programs, which have been proven to drastically reduce the spread of HIV/AIDS.)

If successful, these remnants of the Bush administration could set global drug policy back ten years, since this strategy will not be reviewed again until 2019! And we risk further alienating our European and Latin American allies who strongly support the inclusion of harm reduction in this new global drug strategy.Clearly, our delegates need to fall in line with the new administration or lose their jobs. But the President has a lot on his plate right now. And that's why he needs to hear from Americans like you who want to see an immediate change in drug policy.

Please take a moment to send a letter to the President and Secretary of State Clinton urging them to order our U.N. delegates to advocate for public health instead of "zero tolerance" policies. The letter is pre-written for you, but you can edit it if you like:

Students for Sensible Drug Policy was one of 25 North American organizations to participate in a global forum last year that resulted in the formulation of recommendations that embraced harm reduction and recognized the fundamental human rights of drug users.

We won't let our voices be silenced because of a few of rogue Bush administration appointees who are blatantly ignoring the will of the current administration. Fortunately, we're not the only ones who are concerned about this. Just today, the New York Times published an editorial criticizing our delegates' opposition to harm reduction. And a few days ago, Congressman Henry Waxman (D - CA) and others sent a letter to U.N. Ambassador Susan Rice, warning against "crafting a U.N. declaration that is at odds with our own national policies and interests… as we needlessly alienate our nation's allies in Europe."If they can send a letter, so can we.

Kris Krane,
Executive DirectorStudents for Sensible Drug Policy

P.S. Like the work SSDP is doing to influence President Obama and the United Nations to change drug policy? If so, please let us know by making a donation today.

Lilly Ledbetter and You

Okay with a name like that, you can understand why President Barack Obama enacted the Lilly Ledbetter Fair Pay Act as the first legislative act of his presidency. It is a righteous and laudatory beginning.

The law applies to discriminatory pay complaints and remedies under several current laws, including Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act of 1967 (ADEA), and portions of the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973.

Providing for retroactive coverage effective May 28, 2007, the law overturns the frightening Supreme Court decision Ledbetter v. Good Year Tire & Rubber Co., extending filing deadlines for pay-bias complaints and clarifying the definition of a discriminatory employment practice. This also impacts the handling of closed and pending complaints and suits filed after the effective date. In addition,

Title VII maintains that employers must avoid any actions that may be viewed as retaliatory against employees involved in any portion of a wage discrimination complaint investigation.

"In practical terms," said Catherine Moreton Gray, J.D., managing editor, Human Resources at Business & Legal Reports, Inc. (BLR®), "the law eliminates the time limit within which an employee must file a complaint of pay discrimination as long as he or she continues on an employer's payroll. In other words, if a female employee had a supervisor 10 years ago that made pay decisions based on gender, causing her to be paid less than her male counterparts, and that pay inequity was not corrected in subsequent pay increases, each paycheck will start a new statute of limitations. This means the employee may file a charge of discrimination many years later when she learns of the discrepancy in pay."

To help employers understand the Fair Pay Act and its impact, BLR has made the following purchasable resources for employers or employees: available for purchase:
Lilly Ledbetter Fair Pay Act: Take Action Now

Any discrimination is wrongful discrimination and any legal redress is a rightful assertion of legitimate grievances, no matter when it comes. Ask Rosa Parks.
The encouraging initiative by the President evokes a further sense of confidence that his future will be marked by other executive orders and Presidential decrees that put an end to legal wrongs committed by governmental hubris. Don’t ask me to start telling you which I think should come next. Because right now, I don’t ask, don’t tell.

DUI: Driving Under the Influenza

Here is a note for drivers and DUI attorneys anywhere and everywhere. I recently stumbled upon a study which revealed that persons suffering from a simple cold can become more impaired than those under the influence of alcohol. As a matter of fact, the study says drivers with the flu impairs your abilities by as much as 11 %, the equivalent of downing a double shot of whiskey.

The English experiment put drivers with a variety of conditions, including PMT, stress, and headaches, through an approved hazard simulator test. Those suffering from colds and flu came off worst, with reaction times and alertness slashed compared to a healthy driver.

According to Lloyd’s, who commissioned the study, one in 10 road accidents in Great Britain during 2008 can be attributed to 'driver flu.' What's more, they are predicting a significant rise in such incidents over the next few months as cold and flu pandemics grip the nation.

The Brit survey revealed that nearly 40 per cent of all drivers do not hesitate to drive while suffering from the cold or flu, with over half, get that, over half, suggesting it has no affect at all on their driving ability. I would not be surprised if there was not a statistical corollary for Americans, would you?

In response to this, Lloyds TSB Insurance is warning drivers of the dangers of being unwell at the wheel, particularly when combined with medication, fatigue or a small amount of alcohol, which all have a significant impact on driving ability. There is not a lot to blog or blurb about this. It is common sense. Anyone who has ever been knocked on their ass by a Nyquil knows what I mean.
Last week, our community experienced yet another tragedy when an intoxicated parent with a horrible driving record crashed into a minivan and killed three children, leaving their parents alive and devastated.

Few criminal acts are as senseless as DUI; few as avoidable. If you are reading this, be always mindful of the fact that the law charges those who are impaired, whether it is from a lawful prescription or an excessive cocktail. Keep in mind that the life you save may be your own. And the best place to be with influenza is home in bed.

To view the accompanying video, please visit the following link:

Editorial Cartoon of the Day

David Horsey has won two Pulitzer Prizes (in 2003 and 1999) for his editorial cartoons, along with numerous other accolades and awards. His work is syndicated to more than 250 newspapers across America

'Cuban 5' Files Supreme Court Appeal

Lawyers for five agents of the Cuban government who were convicted on charges relating to their infiltration of anti-Castro groups in Florida in 2000 filed an appeal at the Supreme Court today. They claim that the trial judge's refusal to grant a change of venue from Miami to Ft. Lauderdale subjected the defendants to an unfairly hostile climate and jury pool in Miami, with its large anti-Castro population.

If the Court grants review, the justices could take their first look in decades at the standard that should be used in deciding when to change venue in criminal trials. With heightened media scrutiny that makes local news national almost instantly, the issue is timely, according to statement by some judges in the case below. In the case of the Cuban defendants, the U.S. Court of Appeals for the 11th Circuit used a stringent test of whether it would be "virtually impossible" for defendants to get a fair trial, and based on that test said a change of venue was not needed.

Among the lawyers filing the petition today are Thomas Goldstein, co-head of appellate practice at Akin Gump Strauss Hauer & Feld in D.C., and the legendary Leonard Weinglass, who, along with William Kunstler, defended the Chicago 7, dissidents accused of conspiracy to riot during the 1968 Democratic convention. The case of the Cuban 5 has gotten "tremendous international attention" from human rights groups that criticize the fairness of the trial because of local hostility in Miami to the Cuban government. The defendants are serving prison terms ranging from 15 years to life.

The Cuban Five trial was the only judicial proceeding in U.S. history condemned by the U.N. Human Rights Commission. Eight Nobel Prize winners have also petitioned the U.S. attorney general, calling for freedom for the five.

I've been interested in this case because of the seeming imbalance between very harsh penalties imposed on these individuals -- and the absence of accountability for Luis Posada Carilles, a known Cuban-American militant who allegedly helped blow up a civilian aircraft in the 1970s. Weinglass is a fascinating personality and internationally famed civil rights attorney -- and the contours of this case are interesting and relevant to the future of US-Cuba relations.
See a related article:

GOP's 'Primitive Stimulative' Plan

Well, it does not appear that President Obama is enjoying a lot of support from Republicans. And one of our favorite websites, The Satirical Political Report, took some pot shots at the Grand Old Party this week.

Here they list the GOP's ten best programs to boost the economy. OK, so maybe it's not a legal issue. Still funny.
1. Re-sod Guantanamo.
2. Free sterilization of minorities.
3. All state aid in the form of loans — to be paid back to the “Republican National Committee.”
4. “Jet Stamps” — for corporate CEOs.
5. Expand Electric Grid, to facilitate comeback of the electric chair.
6. Mass transit funds — to deport “illegals.”
7. Tax credits for purchases of semi-automatic weapons.
8. Coupons for conversion of analog TV — to Rush Limbaugh radio.
9. Infrastructure spending — erect ten-story ‘Ten Commandments’ in every state capital.
10. Supplemental infrastructure spending — erect world’s largest solar panel directly over Nancy Pelosi’s office.

DCA Names Candidates for Opening

The Fourth District Court of Appeals has released a list of applicants seeking to fill two vacanies:

The following individuals have applied to the Fourth District Court of Appeal Judicial Nominating Commission for consideration and nomination to the Fourth District Court of Appeal:Katherine Barski, Esq.Ralph Behr, Esq.Jeanne C. Brady, Esq., Judge Reginald Corlew, Judge Jack Schramm Cox, Judge John Frusciante, Judge Jonathan D. Gerber, Judge Renee Goldenberg, Judge Patti Englander Henning, Judge Alfred J. Horowitz, Judge Cynthia G. Imperato, Judge Janis Brustares Keyser, Spencer Levine, Esq., Judge Elizabeth Maass, Clifford Miller, Esq., Judge Kathryn Pecko, Judge Carol Lisa Phillips, Judge William Roby, Judge Robert A. Rosenberg, Andrew Salvage, Esq., Joseph Tringali, Esq., Patti A. Velasquez, Esq., Jane Kreusler-Walsh, Esq.

If there are any questions, please contact Kara Berard Rockenbach, Chair of the Fourth District Court of Appeal Judicial Nominating Commission, at (561) 640-0330, or by e-mail at

Coffee, Fists and Death in the Morning

I guess the other blog thought it was funny. Their early morning headline was ‘Man Drowns in Court.’ But then they make their living laughing at the misfortune of others.

There was nothing funny about what happened to John Ross, who fled Judge Imperato’s courtroom on this day, only to jump into the swift waters of the normally tranquil Middle River, where he would die.

Mr. Ross was 29 years old. He had three children. Tonite, they have no father. Sadly, he set into motion a course of events which precipitated his demise. When Judge Imperato revoked his bond for getting arrested on new drug charges, it was also an invitation to arrest his drug problems. Mr. Ross only saw incarceration, not intervention. Maybe he was thinking of his children, maybe he was just being self-serving. We will never know. He revoked his own bond forever.

All afternoon, even on a quiet Friday, the courthouse was buzzing with remarks about the man who fled from the courtroom “they just left.” In the courthouse cafĂ©, lawyers were joking about his stupidity. Joking, laughing, and drinking coffee.

Outside, in the cold waters, police officers, divers, were searching for a body.
Scores of law enforcement officers lined the New River where John Ross foolishly jumped in, against the advice of a dockmaster. But he wasn't listening.
How jaded have we become? Are we so peppered and seasoned by tragedy that a young man’s terrifying run for freedom becomes a mocking source for our daily amusement? Where is the life we have lost in living? Orson Welles novel, The Time Machine, comes to mind. We have become Morlocks, haven’t we?

I love humor, satire and sarcasm as much as anyone. I could easily have immersed myself into the banter and bastardization of Mr. Ross’s death which went on incessantly. But something instead made me think about the small little bungalow colony in the Catskills where I grew up; where everyone knew everyone. In a smaller world, everyone would have cared.

But next to our jury room, in a monolithic courthouse, with busy dockets, long lines, and thousands of people who do not know each other, no one cared.
Outside of a small circle of friends, no one cared.
The day was not over. While lawyers were buzzing about the escape, the former Everglades High School wrestling coach on trial for allegedly sexually molesting a teenage student was in a physical altercation with the accuser's father in a hallway outside another courtroom. "The skirmish highlighted an emotion-filled day as jurors heard closing arguments in the case," the Herald reported.
What a day, what a day.

Friday, January 30, 2009

Editorial Cartoon of the Day

Chan Lowe's work has won several awards, including the Green Eyeshade Award in 1992, and second place in the 1996 John Fischetti Competition. In 1990, he was a finalist for the Pulitzer Prize. In 2000, he was awarded The National Press Foundation's Berryman Award

Thursday, January 29, 2009

US Court Protects 'Voyeur Dorms' in Miami

neither an adult business nor a business be, so sayeth Judge Marcia Cooke in a federal court decision granting Benjamin & Aaronson a summary judgment against the city of Miami and its Code Enforcement Board.

Arguing that the City violated due process under both constitutional and state standards, citing the precedential authority of Tampa rulings on similarly situated businesses operating under the same techniques, our resident legal first amendment experts have prevailed yet again.

Miami, like Tampa and Orlando, attempted to shut down the famous webcast site, which broadcasts feeds from cameras set up throughout the house of some game co-eds. The argument was that the house in question is in a residential neighborhood that is not zoned for enterprise and, specifically, not zoned for "adult enterprises," such as pornographic movie theaters or peep shows. Florida won at the trial court but lost on appeal. The 11th Circuit ruled that zoning laws do not apply to business done purely over the Internet.

Jamie is headed to the First Amendment Lawyers’ Association this weekend in New Orleans, so you might not see him for a few days. But his victory is being applauded in legal circles as ‘‘Son of Voyeur Dorm’, and we salute him here.

The dorms are essentially residences where people live and can be watched and viewed 24/7 on the Internet. Now I heard these businesses are not what they once were, but for what its worth, the most popularly viewed site on the Internet right now is a box full of puppies. See for example,

Well, the sites Jamie defended have human puppies in them, with real body parts, and are still accessible. Now we can guess what Sheldon Schapiro used to stare at with that laptop on his desk when he was a judge .

Seriously though, this is another important win for protecting the sanctity and breadth of the First Amendment, and insuring that the Internet remains accessible as a 21st century technology generations now and in the future will employ routinely.

Strong Thoughts on Pre Trial Services

'We should not put a contingency fee on freedom'

By Norm Kent

I said this site would be straightforward about the issues impacting justice in the courthouse. This is about the many issues generated by the pre trial services controversy.

We have too many people in our jail. Many of these are Broward County citizens awaiting trial who simply cannot afford bail. Either they do not have the premium for the bondsman, or they cannot access sufficient collateral to facilitate their release. Thus, they sit in jail not for their crimes but for their lack of money. That, my friends, is a crime in itself.

If we want to live by the principle of ‘equal justice for all,’ we should not put a contingency fee on freedom. To our credit, a coalition of concerned courthouse personnel, from the sheriff to the public defender and from the courts to the state attorney’s office, have established a process which enables poor people to get out of jail, too.

We call that process the pre trial services division. The Sheriff operates and the county underwrites this supervisory program to monitor indigent inmates released from custody pending trial. Their duty is to ensure that court ordered special requirements of their release are satisfied. It might mean electronic monitoring, drug testing, or counseling, but whatever it is, the plan satisfies the conscience of the court that the freed person is not presenting a further threat to the community. It is individually tailored and stringently managed.

On one hand, it is a costly pain in the ass. The county spends $6 million a year on the program. It is much easier and cheaper for taxpayers to just have inmates bond out and pay bondsmen a fee. But as I have just noted, not everyone can afford to do that.

So what does the county get out of that $6 million, then? First, it delivers a get out of jail card to the poor as well as the wealthy. Second, it lowers the populations in an already overcrowded jail. Third, it makes those jails more manageable and safer. Fourth, by enabling thousands to leave the jail and enter pre trial, it saves the county no less than $44 million a year in the costs of incarceration, which is ten times the cost of pretrial.

Bondsmen do an admirable job of getting defendants to the courthouse on time. They make a decent living. There are even methods that the county could employ to use them to help reduce the jail populations by allowing the county to collateralize and insure shaky bonds. However, the thought of denying inmates access to freedom to enhance that prosperity is abominable and shocking. The thought of allowing them to lobby county commissioners to endorse a proposal which restricts a pretrial services program can only be viewed as self serving.

The county commissioners heard from a lobbyist for the bondsmen this week, and altered the program to make it more palatable for them, while attempting not to restrict the rights of inmates. Nevertheless, the revelations that the lobbyist for the bondsmen is also the very same lobbyist the county commission uses and retains for its own work is a transparent conflict of interest. The county commission should have previously enacted regulations barring anyone that they employ separately on other projects from soliciting or lobbying them on new ones. Their laxity created an inexcusable conflict of interest. They should have refused the lobbyist the opportunity to lobby.

Absent that, in an abundance of caution, and in effort to avoid the appearance of impropriety, they should have refused to endorse the proposals of that lobbyist. They should have explored alternatives which professionals in the criminal justice system have been proposing for months, some of which still can protect and enrich bondsmen while preserving the rights of inmates to access pre trial release.

In summary, even if the bondsmen had a valid argument, it is impaired by the unclean hands their lobbyist brought to the table. Even if the county had a legitimate reason for altering the rules for the pre trial supervision, it is impaired by the unclean hands their votes cast upon the presentation of a lobbyist they separately employed.

The end result of all this is that the county commission comes out of it looking tainted, the bondsmen greedy, the sheriff supplicant, and the system of pre trial release compromised by political chicanery. There is no other way to see it. It is embarrassing and inappropriate.

Welcome to Broward County.

Congratulations to those columnists and journalists in the local media who have pushed this story from the back pages to the limelight, including Mike Mayo, Dan Christensen, and Bob Norman.

Buy A Gun for Your Son

Packing heat got Steven Collazo sacked. The Boca Raton man now is suing his former employer, the Florida subsidiary of a national funeral home company, claiming his firing last month violated a new state law that allows people with concealed weapons permits to have their firearms locked in their cars on workplace property.

Under the law, employers generally cannot:
Prohibit any customer, employee or invitee from keeping a legally owned firearm inside or locked to a motor vehicle in a parking lot;
Question customers, employees or invitees regarding whether they have weapons in their vehicles;
Search the vehicle of a customer, employee or invitee for a weapon (searches can only be conducted by law enforcement officers);
Refuse to hire an applicant based on whether he or she has a concealed weapons permit;
Take action against an employee, customer or invitee based on written or verbal statements made by that individual regarding the possession of a gun stored inside a private motor vehicle in a parking lot for lawful purposes.

This does not apply to the courthouse, however. Good, I feel safer already. Do you know at Boyd's Bait and Tackle right at Fourth Street and Andrews, there is a shooting range? Go there occasionally with my 22 just to calm down and relax, but I ran out of those targets with Navarro in the bullseye. Would not matter, never hit it anyway. (Don't worry, Nick knows I am kidding)

Full Story online at the site

Federal Court Plea Agreements Back Online

It is now official.
In a total policy reversal, Chief Judge Federico Morneo of the Southern District court in Miami has ordered that plea agreements are public and should be made available over the Internet unless they are otherwise sealed, according to The National Law Journal.

"The sense of the Court is that the public's interest in access must prevail in this instance and that restricting access to all plea agreements is overly broad," Judge Moreno wrote in his order. "Other means are available to the prosecution and defense to insure that the public record does not contain information about cooperation agreements in those instance where the interests of safety or other considerations require different treatment."

Moreno held an en banc hearing to review a 2007 policy ordering the removal of all plea agreements from the federal courts' online filing system, PACER, in an attempt to safeguard defendants who cooperate with the state, The National Law Journal said. That older policy, which is now rescinded, was itself a response to the Justice Department's bid to get the Judicial Conference to order that plea agreements be taken offline nationwide.

Defense attorneys and First Amendment lawyers alike in the Southern District of Florida called for the policy to be overturned, The National Law Journal reports: "Most courts are coming to the view that it doesn't make sense to seal all those records," Tom Julin, a Miami-based First Amendment lawyer, told the paper. "It's very important for someone to see what deals prosecutors are making."

Nothing not to agree with about that, is there? It's not like they are putting porn online. It's just good public policy!

Florida Bar Sells Your E Mail Address

Breaking news from today's Daily Business Review, Florida lawyers are complaining about the Florida Bar’s sale of their e-mail addresses to third parties who have flooded their in-boxes with unwanted marketing posts.

The state bar charges $8,500 for a DVD with lawyer contact information and makes about $200,000 a year on the sales, according to the Daily Business Review. The bar says it is a public agency that is obligated to provide the contact information.

But a handful lawyers at a recent committee meeting of the state bar fumed about the practice, according to the article. One of the critics is Ury Fischer, who has written the state bar to voice his objections.

“I believe that there are very simple and inexpensive ways for the bar to meet its public records obligations without exposing its members to spam abuse," the letter says.

Hey, I want to join Ury Fishcher. Really, our offices spend so much money trying to put anti virus stuff in our computers, anti spam, and anti all sorts of things I don't know about, and now to find about my own little Florida Bar is selling my name, without me even getting a little bitty residual. Oh, man, I want either less corruption or a bigger share of it!
By the way, it appears that what the Florida Bar is doing is legit: A recent article highlights the fact that attorney e-mail addresses are considered public records in Florida.

Shades of Broward: LA Juror Charged With Perjury

It has been four years since Broward County juror Stacey Forbes was sentenced by Judge Eileen O’Connor to a four month contempt sentence for failing to disclose during the voir dire that he had been arrested before.

Her attorney at the time opined that the jurist “wanted blood from the juror,” and that “this kind of thing had never happened before.” Stated Bill Gelin back then, “The central thing is, it’s unheard of nationwide; this type of sentence for a juror.” The case stirred a courthouse cauldron of controversy.

A similar situation occurred a year later, in 2006, in US District Court. Lawyers for former Governor George Ryan argued that jurors, who failed to disclose arrests, including some that occurred more than 20 years ago, were liars who could not be trusted to render a fair verdict. Ryan's defense team said that five such jurors should have been removed from the case, which would have left fewer than 12 jurors to deliberate and triggered a mistrial.

The pot boiled over again today in Los Angeles Superior Court. Instead of deliberating the facs of someone else’s case, on Manuel Soto is posting bond on his own. Called to jury duty last year, he is accused of lying twice by failing to disclose his previous convictions for felonies.

Held in lieu of $100,000 bail, he is charged with two felony counts of perjury for allegedly falsely stating, both on a juror declaration form and in court during questioning by a judge, that he had no felony record, reports the Los Angeles Times.

"The district attorney's Justice System Integrity Division—which handles cases involving police officers, attorneys and jurors—has filed charges in just one other case involving a juror since 2000," the article states.

I don’t know, but a $100,000 is a higher bail then Judge Futch would have authorized. Jurors are scared, nervous, and intimidated by the courthouse, and that is just trying to find a parking space. This kind of bond and these kind of sanctions seem harsher than the penalties the accused they were going to judge is facing. Ironically, the new episode though reflects again that so much of what we see everyday and think is new is recycled from years before. What then have we learned in living?

Review Report: New County Judges Selected

A report in the Daily Business Review by Jordana Mishory details the background of the newest judicial selections by Governor Crist:

Fort Lauderdale solo practitioner Carlos Rodriguez has been appointed to the Broward bench, which saw three Hispanics unseated in the last election cycle. Gov. Charlie Crist appointed Rodriguez and General Magistrate Barbara McCarthy as the county’s newest Broward Circuit judges Tuesday.

McCarthy and Rodriguez will fill vacancies left by the October deaths of Judges Howard Zeidwig and Charlie Kaplan. The two new judges interviewed with Crist on Tuesday. Rodriguez was born in Cuba and came to Florida with his family when he was 6. He said in an interview that if his father hadn’t been smart enough to get out of Cuba after Fidel Castro took over, he would have been cutting sugar cane instead of practicing law.

Rodriguez said he is most looking forward to giving back to the community in his new role as judge. “When I say I want to give back to the community, there’s some debts to it because of that experience,” Rodriguez said of the people who helped him succeed. Rodriguez worked at the Broward public defender’s office from 1980 to 1985 before joining Fazio Dawson for 2½ years. He has been a solo practitioner since, handling criminal and insurance defense work and personal injury and medical malpractice cases. He primarily represents plaintiffs. Rodriguez becomes a judge after being selected as a finalist five times by the Judicial Nominating Commission — three times in the late 1980s and twice last year.

In a written statement, Crist commended Rodriguez for his years working in both the civil and criminal arenas. “He is also very active and involved in the Broward County community, and I believe he will use those experiences to judge cases with restraint and balance,” Crist wrote.

McCarthy has served as a general magistrate for nearly five years. She has worked in the family, dependency and civil division. Currently she hears circuit and county civil cases, and also complex business cases. Prior to becoming a general magistrate, McCarthy practiced municipal law with the city of Fort Lauderdale. She also worked as a prosecutor with the Broward state attorney’s office and a 4th District Court of Appeal clerk for then Judge Barry Stone. McCarthy, who grew up in Long Island and went to college in Massachusetts, spent nearly eight years as a special education teacher before going to law school at St. Thomas.

McCarthy said being a judge was a “long-time dream” and said she was both honored and elated when she was appointed. Her interview with Crist on Tuesday, followed by her subsequent appointment, was the first time she met the governor. “Barbara McCarthy’s proven track record as an educator and as an attorney handling a variety of civil and criminal cases makes her an ideal choice for this post,” Gov. Crist said. “I am confident she will use her experiences in the classroom and the courtroom to rule from the bench with patience, humility and fairness.”

These two appointments come in the midst of a major push for diversity on the bench by the governor’s office. Crist has twice rejected a list of nominees for the 5th District Court of Appeal because it contained only white attorneys and judges. He has encouraged JNCs around the state to provide him with a diversified slate of finalists to choose from. But in Broward, judges with Hispanic names did not fair well at the polls in 2008. Many lawyers complained that the Hispanics were being unfairly targeted. All three Hispanic judges who drew challengers — Pedro Dijols, Catalina Avalos and Julio Gonzalez Jr. — lost during the August primary. Gonzalez was the highest-rated judge in a Broward County Bar poll of lawyers.

Editorial Cartoon of the Day

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Steve Sack has been the staff editorial cartoonist for the Minneapolis Star Tribune since 1981. He has won assorted local and national cartooning awards, and has once been named a finalist for the Pulitzer Prize.

Today he injects a dose of reality into the oxycontin monster, who somehow skated jail consuming and abusing painkillers he took for himself whilst inflicting pain upon others.
A poster child for the disparities of South Florida justice.

'Guilty Until Proven Innocent'

Lord Polonius, speaking in Shakespeare's Hamlet, once opined that 'brevity is the soul of wit.' Sometimes, therefore, I just shut up and argue that 'silence is the heart of genius.'

We have all been watching the tv tour of the Illinois Governor, Rod Whateverovich. He's being impeached in Illinois while doing five minute spots with Whoopie Goldberg on 'The View'. He's been tarred and feathered by his own words and deeds.

As an attorney, you stare in disbelief. You say 'Only in America.' You think this guy must be a fool. You are so astonished by his seeming cognitive dissonance, you forget how this case was played out by the prosecutor, how unlevel he made the playing field from day one. You forget until you read this incredibly incisive blog by one of the nation's leading attorneys, Gerry Spence, reminding you that everyone is entitled to a fair trial in a courtroom. It's a bitch slap to the face of complaceny. You read this piece, and you say, 'Damn, I should have said that.' You then kick yourself, and again realize that no matter how old you are, there is much you can still learn.

So you just shut up, and let the smarter guy do the talking. Here then, is a sentry call from a great advocate, to every attorney who cares about justice, fairness, and due process. Read what Gerry Spence has to say:

Wednesday, January 28, 2009

Judge Lebow's Ruling Must Be Affirmed

Appellate Courts Should Back Judge Lebow’s Ruling
By Norm Kent

In an emergency relief motion filed late last week, the Florida Attorney General's Office claims Circuit Judge Susan Lebow overstepped her bounds when she punished two prosecutors for listening to taped phone conversations between murder defendant Luis O. Martinez and his attorney. How did this day come about?

About two years ago, local papers ran a story that law enforcement, with all its spare time, wanted to have its staff spend their evenings listen to phone calls from inmates at the county jail. Apparently, COPS and Larry King were not enough for them. Notices were dutifully posted and the cruel process of intervention and invasion into the sanctity of attorney client privilege was commenced under lawful pretenses.

The right column sidebar of this blog features an eye-popping video of Andy Griffith and Opie. Let me tell you why it is there. The episode was about a bank robbery in Mayberry. The suspect was in custody. Opie tried to help out Andy. Thus, before the defendant’s attorney met with his client in the jail, Opie secretly placed a tape recorder to listen in on the conversation. After the lawyer left, Opie retrieved the tape recorder to play it for Andy. Watch what happens when this Sheriff is presented with that evidence.

Ladies and gentlemen of the law, of this courthouse, there are few things as sacred as the nature of the attorney client privilege. When I showed this tape to Chris Grillo, the defense attorney in this case, he remarked that he wished he had it to display for Judge Lebow during his closing arguments on this sorry episode.

We are talking about a fundamental right of jurisprudence, an essential ingredient of the adversary system, a cornerstone of justice. Too many years of Ronald Reagans and forfeiture acts have jaded us. We need to return to the Zen of truth.

Martinez, 43, is on trial for the slaying of a Lighthouse Pointe man in 2003. The trial was near completion when the judge halted it in October. She acted after Grillo claimed state attorneys had listened to privileged conversations mistakenly taped at the Broward jail during the trial. The conversations were between Grillo and Martinez.

The defense sought a dismissal, the most serious sanction. Judge Lebow said no, that is too much. Instead, she chastised the prosecutors for inappropriate conduct and disqualified the entire State Attorney's Office from trying the case. It is nicer than I would have been. I would have flogged the prosecutors and one used to share space with me in my law office.

I have not followed the case so closely as to understand whether the discovered evidence was consequential or immaterial. While that is relevant in fashioning an appropriate judicial remedy, I am more concerned in those procedures which set into motion the techniques that now 'inadvertently' but invariably invade the privacy of inmates and their attorneys. Think about it. There must already be some probable cause and proof of guilt to detain them; some credible evidence which warranted their incarceration. Otherwise, theoretically, they would not be in jail

Let the State of Florida then prove their case with the evidence which warranted that detention in the first place. You see, the incarceration is already a penalty that is being exacted by the State. Seek not to enrich your prosecution by using the tools of chicanery and deception. Seek to find ways instead to protect the integrity of those first ten amendments we call the Bill of Rights.

If I were on the appellate court that would be the message I would send to the State Attorney, the Sheriff, and law enforcement. In doing so, I would affirm Judge Lebow’s ruling, which is the least innocuous penalty that should be exacted for ‘inadvertently’ trespassing on the Constitution of the United States of America.

English Firms Want Dress Code for Females

Three years ago Rumple did a Justice Building Blog piece about a dress code. Here it is:

This week in Great Britain one of its most established firms, Marie Claire UK reports that Freshfields Bruckhaus Deringer LLP has suggested to its female attorneys that they "embrace their femininity" by wearing stiletto heels paired with skirts. This suggestion comes as a part an "image changing course" used in the firm's UK offices to advise staff on how to dress professionally.

One of the oldest firms in the City, Freshfields has felt compelled to hire image consultants to offer honest opinions on workwear at the 2,400-strong company.

The image consultants have warned female employees that: “[a]lthough accentuating your leg length is highly recommended, necklaces are to be avoided for fear of drawing attention to the bustline.”

The lengthier article is here:

Now comes time for my blurb, my blog, or worthless opinion. I do not wear my leather vest and jeans to court anymore. I am older. I dress nicer. Russell Williams still says I still do not dress well, but my Macy’s charge account says otherwise. Anyway, I just stand adjacent to Fred Haddad when I am in court, so no matter how I dress, it looks better than the guy I am next to.

But the purpose of this blog was to ask who can remember that scene years ago with some female state attorney whose dress started a courthouse controversy over being too high, was it?
I remember this emotional conflagration but as the years pass so do our memories. Who remembers what the heck I am talking about?
Beuhler? Beuhler? Beuuuhler?

Michael Jackson Back in Court with New Suit

It just seems that following a piece about Larry Seidlin with one about Michael Jackson is too much of a match to pass up. Seems that the ‘Gloved One’ is being sued and this time it has nothing to do with little children and his bedroom.

Apparently, director John Landis is tweaked that, for the last four years, Jackson hasn’t bothered to pony up any of the royalties for their collaborative “Thriller” video, along with the awesome documentary about the making of the video. You may stumble upon it on a VHH1 spinoff channel.

The suit alleges that: “After a spectacular theatrical premiere, the ‘Thriller’ video became a worldwide megahit and an iconic pop culture phenomemon that has continued to generate profits for defendants Optimum Prods. and Michael Jackson, who have wrongfully refused to pay or account for such profits to plaintiff."

The action accuses Jackson of “fraudulent, malicious and oppressive conduct” in failing to pay Landis 50% of the net proceeds. So my message to Judge Larry is make sure you get the residuals, Larry. You never know how much you might be worth in 20 years. Look at Neil Rogers, we are still selling his 'Best Of' tapes years later.

Judge Larry Heads to Sir Larry's

Fresh from his appearance on Good Morning America,, our own Larry Seidlin appears this Friday evening on Larry King, himself once a radio talk show host in Miami, years ago.

It is two years since Larry shed his tears for young Dani Lynn on a national soap opera which rivaled the OJ trial, though this was but a six day window in the spotlight. Trouble is, say local lawyers, it should have been no more than six hours.

Cleared of criminal wrongdoing in an elderly exploitation claim, Judge Seidlin has apparently been green lighted by the networks for a show, which he says is "in the works." Or a teaching stint. One thing we do know, for sure, and that is Larry's back, tanned, and ready to rock and roll.

He did dismiss the allegations against him as unwarranted, claiming his unique experiences serving 28 years in family court distanced him from the criminal and civil lawyers who unfairly criticized him, such as Roy Black.

He says he has never left the limelight or lost the enthusiasm for it. His wife and he: "We go places and people say, 'You're the judge. God bless you.' And then they start hugging me," he said in an exclusive interview on "Good Morning America" today.

There was no mention on the show of the disparaging allegations which befell the judge after his resignation. They are not water under the bridge, because even though no criminal charges will emerge, the JQC can open a file if they so elect. But is a retired judge required to answer to the same?

Tuesday, January 27, 2009

Editorial Cartoon of the Day

Gary Varvel is the editorial cartoonist for The Indianapolis Star. His cartoons are nationally syndicated through Creators Syndicate and have appeared on CNN and in Newsweek, The New York Times, USA Today, Washington Times, National Review, World magazine and Sports Illustrated

High Court Will Hear 'Miranda' Arguments

The Supreme Court of the United States, now on recess until February 23, has agreed to clarify how long a suspected criminal's request for a lawyer during police interrogation should be valid.

The high court on Monday said it will consider allowing prosecutors in Maryland to use a confession from convicted child molester Michael Shatzer that he sexually abused his son.

Shatzer was imprisoned at the Maryland Correctional Institution in Hagerstown for child sexual abuse in 2003 when police started investigating allegations concerning his son. Shatzer requested an attorney and the investigation was soon dropped.

Three years later, the boy was old enough to offer details. According to court documents, when police questioned Shatzer again about the case, he was advised of his rights and signed a form waiving them before confessing.

After Shatzer was charged, he filed a motion to suppress his statements, arguing that he had asked for an attorney in the case before. A lower court said the confession could be used, but the Maryland Court of Appeals agreed with Shatzer and threw out the confession. That is what Miranda's impact has been.

Turn to Broward. Gorman Roberts' manslaughter conviction was overturned because of a single word. Roberts was convicted of pushing 5-year-old Jordan Payne in February 2002 into a Pompano Beach canal, where he drowned. But his conviction and prison sentence were thrown out in May 2004 when an appeals court ruled the Miranda rights warning he got from Broward Sheriff's Office investigators was incomplete.

The warning, which said suspects "have the right to talk with a lawyer and have a lawyer present before any questioning," failed to spell out that defendants also had the right to an attorney "during" police interrogation as well. It was corrected in November 2002. Score that one for the 'Commander,' the late Ellis Rubin. He noted the flaw and ran with it all the way to the appeals courts. Call it the 'Do Not Screw' with Miranda rule.

Since then, dozens of other Broward County cases — including murders, robberies and illegal drugs — have been affected because of the faulty Miranda warnings carelessly employed by cavalier police departments, who on their own, changed the structure and wording. Convictions have been reversed in some, defendant statements suppressed in others. Just two years ago, 2007, in a FLPD drug trafficking case, Sid Fleischmann and I discovered the improper form inadvertently presented to defendants. Suppression City.

No prediction on what the Supreme Court will rule on this Maryland case, but it would be nice, it would be real nice if you were able to go into a criminal courtrooms and have judges that knew of these monumentally important rulings and decisions, beforehand, and not have to explain the alphabet to them all over again. I mean, they are criminal judges, right? They should know the four corners of Miranda, and I do not mean Carmen.

Feces Facial Flips SD Public Defender

This from the ABA journal late Tuesday afternoon....

A defendant who wanted his public defender removed from the case will get his wish after smearing feces on his lawyer’s face and flinging the material at jurors.

Weusi McGowan was on trial in San Diego for a home invasion and robbery when he brought in a baggie filled with excrement during a mid-morning break, City Wire reports in a story posted on
McGowan smeared the feces on the face and in the hair of Deputy Alternate Public Defender Jeffrey Martin, then flung the material toward the jurors, the story says.

The excrement missed Juror No. 9 but hit his briefcase.

Judge Jeffrey Fraser had denied McGowan’s request to represent himself, the story says. The judge declared a mistrial and said McGowan would have to get a new lawyer. In related news, Howard Finkelstein announced he is taking the day off tomorrow.
So where was the courthouse security when the guy came through the metal detector? I am just thinking how does this make it through, you feel me?

Russian Rapes Raccoon

They say if you lie down with dirty dogs, you are going to pick up fleas.

If you believe this story from the UK's Sun tabloid today, a 44-year-old Russian man needs to have his penis surgically reattached after a raccoon ripped it off.
But don't feel too sorry for Alexander Kirilov. According to the paper, he was trying to rape the raccoon when he got his nipper nipped.
Has anyone heard from John Wayne Bobbit lately? What a mess that guy was. I had him on my radio show once. He lit up the air like a 15 watt bulb. This is a guy who parlayed his unfortunate fame into a stint with Monday Night Raw and the World Wrestling Federation, then, after losing work as a bartender and tow truck driver, he wound up as a minister in a Las Vegas church. Really.

The guy was a total mess. Dozens of run-ins with the law, arrested about 8 times for everything from assault to grand larceny to domestic violence, winding up in jail and then on probation. Presently one of the finalists for a Broward County judgeship.

Abramson Fiasco Argued at Supreme Court

This from the late afternoon edition of the Daily Business Review- a detailed article by Bud Newman addressing the constitutional crisis facing the Supreme Court in whether to seat Bill Abramson.

We offer on the blog just some excerpts from the thoughtful article....

A skeptical Florida Supreme Court heard oral arguments today on whether Gov. Charlie Crist must sign a judicial commission for Palm Beach Circuit Judge-elect William Abramson even though his law license has been suspended for 91 days. “It seems completely absurd, and I think the general public would find it ludicrous, that someone who can’t practice law” can still be a judge, Justice Barbara Pariente said. However, she added, “We’re not dealing with [Florida Bar] policy, we’re looking at the Constitution” and what it requires or prohibits.

Tallahassee attorney Mark Herron of Messer Caparello & Self, who argued Abramson’s case, conceded to Pariente that “it may be absurd” for Abramson to preside in a courtroom when he is temporarily ineligible to practice law but said the Constitution does not bar a suspended lawyer from being a judge. He said it only requires a circuit judge to have been a member of The Florida Bar for the previous five years — a requirement Abramson meets.
“Our case is Abramson is eligible,” Herron told the court, citing Bar rules. Chief Justice Peggy Quince asked Herron whether there is “something kind of screwy about this situation” in which a suspended lawyer might still be a judge. Herron agreed with Quince but quickly added that “I’m not saying it. The Constitution is saying it.”

Attorney Stephen Grimes of Holland & Knight’s Tallahassee office — one of two former Florida justices arguing for The Bar — acknowledged the state Constitution does not have specific language barring a lawyer in bad standing with The Bar from becoming a judge. However, he argued the Supreme Court has ruled in other cases that the constitutional language is used “unless you reach an unreasonable or an absurd result.”

Justice Charles Wells appeared to agree. If Abramson’s commission is signed, he said, “You would be confronted with what would be a very harmful and absurd situation for the judiciary.”
It was Charles Dickens who once wrote that sometimes 'the law is an ass.' Here it most certainly is. There once was a time when you did not have to be a lawyer to be a judge in Florida, but that was eons ago. So let's employ common sense and simply say that Abramson has a right to serve on the bench the moment his suspension is up and he is reinstated, assuming it is within the time parameters of his term that he was elected to serve. The Governor has to appoint a placeholder in his stead. (Of course I can see a subsequent argument being made that when the race was called and the trumpet sounded, he was unqualified to be at the gate and take the seat, and thus it is lost forever- but that is an argument for another day.)

This constitutional dilemma is quirky for sure, but not beyond judicial interpretation. Some would say it is not all that hard to figure out. You have to be a member in good standing just to be a traffic hearing officer or magistrate. It is a logical and reasonable extension that a constitutional interpretation of the 'five year rule' incorporates the principle that you must be a member of the Bar in good standing to be a judge. Laws are read in para materia with their companion statutes and legislative intentions. The Court has to give breadth to the spirit of the law as well as its letters.

What is your opinion?

Protestors Win Case Against GOP

A Ramsey County, Minnesota trial judge has now entered an order and dismissed a prosecution for insufficient evidence against protestors who demonstrated during the 2008 Republican National Convention. The defendants were charged with obstructing the legal process, disorderly conduct, unlawful assembly and blocking traffic. Over 300 were arrested, their personal properties and protest pamphlets seized, and their civil liberties denied.

The LaCrosse, Minnesota Tribune reports that St. Paul City Attorney John Choi asserted that "by wearing masks and working together, the protesters presented some evidentiary problems for prosecutors." Representing the defendants, lawyer Jordan Kushner, who has lectured at the National Criminal Defense College Trial Practice Institute -- said the case "'showcased how police had no basis for the vast majority of arrests made during the RNC.'”

It does not matter whether it is Seattle for the WHO protests, Minnesota for the RNC, or Chicago 1968 at the Democratic convention. Yes, Mayor Daley we remember you and your police riot. Great new animated video out about it available on, entitled 'The Chicago Ten.'
Cities and governments, and mostly police departments, locally or in Dade, fail to grasp that protesting is an American entitlement to be protected, not a privilege to be granted.
Protesting is a civil right; a fundamental, sacred, constitutionally protected right, which is the essence of a free America. Protesters should not need protection from the police. They should be protected by them.
Here is a hometown example of a case where law enforcement may not have only abused a citizen's rights, but laughed about it afterwards. Attorney Elizabeth Ritter was the victim. :

11th Circuit Rejects Flag Pledge Case

The 11th U.S. Circuit Court of Appeals on Monday said it would not revisit last year's ruling that upheld a Florida school policy requiring students to get a parent's permission to avoid having to recite the Pledge of Allegiance.

A federal district judge had agreed that the rule "robs the student of the right to make an independent decision whether to say the pledge." But last July, an 11th Circuit panel said said the Florida law protects parents' constitutional rights to bring up their children as they see fit.

"The State, in restricting the student's freedom of speech, advances the protection of the constitutional rights of parents: an interest which the State may lawfully protect," the panel said.

Judge Rosemary Barkett dissented from the court's refusal to rehear the case, saying it "directly contravenes" the U.S. Supreme Court's 1943 ruling that held that states may not compel minor students to recite the pledge.

She added that the panel "mischaracterized the issue as one involving the resolution of conflicting constitutional rights between parents and children....because the State itself cannot compel speech, it lacks the capacity to delegate to parents the power to compel this speech," she wrote.
I am with Rosemary. Parents need to read more of Kahlil Gibran's The Prophet: "your children are not your children..." and if they are now they will not be after long...

The case is Frazier v. Alexandre, No. 06-14462.

Monday, January 26, 2009

Justice Roberts Lampooned

Bruce Beattie is today's featured cartoonist. Beattie joined the Daytona Beach News-Journal in Florida as editorial cartoonist in 1981 and today is syndicated to hundreds of newspapers. In addition to syndication, Beattie's cartoons have been featured on "Meet the Press," in the New York Times, New York Daily News, Detroit News, Milwaukee Journal and in several museum exhibits.

Lawyers in the News

The Sun Sentinel reports that President Obama will in all likelihood appoint a new U.S. Attorney for the Southern District in the coming months. I have no speculation on who it might be, do you ?,0,536527.story

A provocative and thoughtful article from the St. Petersburg Times details the legal hurdles in prosecuting Florida House Speaker Ray Sansom, pictured above, plagued by two ethics complaints and a possible state attorney investigation into allegations he misused his public office. You know, anytime you are a politician elected to serve a public office and you instead have to spend your days in the office of a criminal defense attorney, it's not a good thing is it?

The Palm Beach Post editorializes against suspended attorney Bill Abramson being allowed to ascend to the bench, noting incisively that "Chapter 318.34 - requires that traffic court hearing officers be members in good standing of the Bar. Would it be logical for the Supreme Court, in effect, to endorse higher standard for traffic court than circuit court, where judges issue the death penalty, referee major lawsuits, decide child custody and rule on all juvenile and probate cases?" Read the whole article here:

The city of Cutler Bay has passed a law, maybe the first of its kind in Florida, mandating that that shopping centers with 25 or more parking spaces set up video surveillance at entrances and exits within 18 months from this date. No nuisance abatement action precedes the lasw, it is just imposed for public safety reasons, I am sure, and to enhance surveillance in case of abductions or crimes.

This blogging stuff is fun, but it sure takes some time away from fantasy baseball planning. N.K.

Local Attorneys Indicted in Alleged Fraud

Ripples of dismay and disbelief have permeated the courthouse since the revelations about federal charges against Broward attorneys Anthony Livoti, Jr., and Michael McNerney surfaced in the Miami Herald a few months ago.
They came to fruition with an indictment earlier this month. Both are respected and forceful advocates with sterling reputations. The story has gone national, with a lengthy Daily Business Review feature being picked up today by Law.Com. You can read the full story at this link-

We can only hope the Feds got this one wrong and both attorneys prevail in their defense that they were lawfully carrying out their fiduciary duties as counsel for the indicted corporate executives. On the heels of the sketchy case against Ben Kuehne in Miami, there are lots of questions raised in this one. In fact, a New York court last week just ruled that is inappropriate to go after attorneys for advice they delivered while acting in a legal capacity. You can access that case here:
Prosecutions this close to the edge are an assault upon the adversarial system of justice. For a long time, since Ronald Reagan, the feds have thought that too many defense lawyers are 'on the side' of defendants and have sought to compromise their obligations. We are not 'on the side' of defendants; we are within the parameters of a justice system that has two sides, and each has a right to effective advocacy.

High Court Protects Sexually Harassed Employees

An employee is protected from being fired in retaliation for answering questions during an employer's investigation of suspected sexual harassment, the Supreme Court ruled today.

The unanimous court ruled the federal civil rights law's anti-retaliation provision for employees who report workplace sex or race discrimination also extended to an internal investigation of a supervisor or another worker."Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question," Justice David Souter wrote in the opinion.

The ruling decided an important workplace issue. Federal government lawyers said witnesses and victims would be unwilling to cooperate in employer sexual harassment investigations if they faced potential punishment like the loss of their jobs.

It is a new and growing area of law, and just last week the ABA Journal reported that the average settlement for sexual harassment claims jumped from $106,000 to $292,ooo between 2006 and 2008. Employers are growing more and more sensitive to 'neutering' the workplace; eliminating stereotypical jokes and mandating an unsettling political correctness. We have already seen it impact jurists in the courthouse.

Have we gone overboard in compensating for past sins, or are we just now addressing an endemic we ignored for too long?

Pictured above is Anita Hill. Remember her? She had accused Supreme Court nominee Clarence Thomas of making sexual overtures toward her while she worked under him at the Equal Employment Opportunity Commission. In televised hearings, Hill accused Thomas of sexually harassing her with explicit, embarrassing talk after she refused to go on a date with him. In one memorable moment, Hill recounted comments she said Thomas made about a pubic hair placed on his can of Coke. I understand Paul Backman later bought that can of coke on E Bay.
For more details on this ruling, I recommend this post:

Supreme Court OKs Passenger Frisks

The US Supreme Court has just ruled unanimously in a case which sustains the expanding rights of law enforcement officers. It has determined that a police officer who has a reasonable suspicion that a car passenger is armed and dangerous may conduct a pat-down search without violating the Fourth Amendment.

Writing for a unanimous court, Justice Ruth Bader Ginsburg said police officers involved in lawful traffic stops need not have a belief that the passenger is involved in criminal activity before conducting a search. The frisk is permissible if the police "harbor reasonable suspicion that a person subjected to the frisk is armed, and therefore dangerous to the safety of the police and public," according to the opinion (PDF).
Defense attorneys had argued that the reasonable suspicion standard could support just about any pat-down and limit a citizen’s rights. The court thought otherwise. The Supreme Court, now apparently firmly titled to the conservative side when it comes to Fourth Amendment matters, has struck another blow against our constitution protections. This decision comes on the heels of one a week before, where the Supremes ruled that the exclusionary rule does not apply when the police accidentally violate your Fourth Amendment rights. Not a good thing. So all they have to do is say, 'Sorry, my bad' and your goose is cooked.

Traffic Court Allows Video Testimony

Getting a ticket dismissed because the police officer didn’t show up just got a lot harder in Pima County, Ariz.

With the help of OoVoo, an Internet-based videoconferencing and chat application, Pima County Judge Jose Luis Castillo Jr. has begun allowing witnesses to testify remotely via the Web instead of coming into court.

While Arizona’s criminal procedure rules prohibit remote appearances by witnesses and defendants for trials and evidentiary hearings, Castillo says there’s no similar bar for civil hearings. “I found a provision that states a hearing officer can do whatever you need to do to be able to process these cases,” he explains.

If the court continues to allow the online testimony, Castillo believes that traffic court defendants soon will be permitted to appear remotely as well.

Castillo recently presided over his first OoVoo-enabled traffic court matter. The driver was cited for driving on a highway median. The ticketing police officer testified from inside his car by an Inter­state off-ramp.

Even though the hearing proceeded with the help of some newfangled technology, the police could not outwit some good, old-fashioned smart law­yering. The driver’s attorney successfully argued that there are some circumstances under Arizona law where such driving is perfectly legal.

It is this kind of cutting edge technology and computerization that has brought some Western courts into the 21st century much quicker than the East Coast establishments. Here in Broward our courthouses are flooded, our clerks are backed up, and hundreds if not thousands of tickets get dismissed on speedy trial rule violations. Not that the public or traffic ticket lawyers cares too much about that. They are thrilled.

But as I think again about the task force looking just at the courthouse, I realize what we really need are global solutions to a day when the court is electronic and paperless; jail processing is swift; fingerprinting is done with lasers not cards which get lost, and video tele-testifying and conferencing is routine instead of earth shaking. Not to mention that it would be nice if jurors and litigants did not have to wait on one hour lines to get into the courthouse. Yes, I know, we are looking into a scanning system to process people more quickly. And I suppose in the interim we will just keep the EMT’s by the front waiting for someone to collapse on line.

We can do all this. It is not beyond us. We just have to avoid answers that are patches instead of solutions. We have to marshal our resources and budgets more creatively. We have to act with the urgency of now, remembering it is our lives and our professions that are wounded by our transparent weaknesses.

St. Pete Prosecutor Skates on 2nd DUI

The ABA Journal blog's Martha Neil reports that an ex prosecutor known for being really tough on DUI defendants has avoided jail on her own drinking binges.

Lydia Wardell, 41, got a year of probation but no jail time at her sentencing this week after putting her fate in the hands of Hillsborough County Judge Lawrence Lefler, reports the St. Petersburg Times. The DUI was her second; in 2005 she was given at least a year of probation following an arrest for drunk driving while her two young sons were in the vehicle.

Although a 10-day jail term is mandated, under state law, "if someone is arrested twice for DUI within five years, as Wardell was," it also provides for an exception, the newspaper explains: The judge has the alternative of sentencing the defendant to residential treatment, as Lefler did in Wardell's case, including in her sentence a requirement that she spend 110 days in residential treatment. Since Wardell has already done so, that portion of her sentence has been completed.

She has also had her driver's license suspended for five years, and must pay a $1,000 fine and perform 50 hours of community service. Wardell resigned from her job as an assistant prosecutor for Pinellas and Pasco Counties after her second DUI arrest, the newspaper notes.

"Before her first arrest, Wardell was known for her aggressive pursuit of DUI and other cases as one of two misdemeanor court supervisors for the Pinellas-Pasco State Attorney," the St. Petersburg Times reports in an earlier article. "She was demoted after the first arrest, barred at work from having any contact with DUI cases. She was also suspended 30 days without pay."

We woud not do that here, would we?

Funeral Services Set for Ryal Gaudiosi

The BACDL has issued an announcement concerning the funeral services for Ryal Gaudiosi, the popular and renowned criminal defense attorney and former Broward County public defender who sadly passed away last week.

He is pictured here at his retirement party last March with colleagues Pete LaPorte and Jim Tylock.

Visitation will be on Tuesday, January 27, from 2-4pm and 6-8 pm.

The services will be held at the

A celebration of mass will be held Wednesday, January 28 at 10:00 a.m., at


Burial will follow at the:

1500 ST. ROAD 7

The family will receive guests at their home immediately following the burial service:

390 N.W. 107TH AVE.

School Wins Confederate Flag T Shirt Case

Reporting at the Wall Street Journal blog, which can be accessed on our sidebar links, thoughtful blogger Dan Slater reports that a controversial Confederate flag case has been decided in Tennessee, and I for one am not too happy with the majority ruling.

The recap: A high school principal in Tennessee told students they couldn’t have “Rebel flags” or symbols of flags on their clothes. Three students, who felt that the policy unconstitutionally interfered with their ability to express their southern heritage, sued. In August, the Sixth Circuit Court of Appeals upheld a grant of summary judgment in favor of the school. This bugged me, as I am a student of Tinker vs. Des Moines, the landmark First Amendment case that struck down a school ban on armbands to protest the Vietnam War.

The court cited testimony that racial tensions — including racist and threatening graffiti and physical altercations between African-American and white students — comprised the context for the clothing ban. The court distinguished the case from Tinker and its progeny.

Last week, the Sixth Circuit denied the students’ petition for rehearing en banc.
In dissent, Judge Danny Boggs wrote:

'It should be emphasized that no disruption of any sort was directly associated with the display of symbols, in that the persons displaying the symbols are not alleged to have been involved in any physical incidents, nor to have instigated even any verbal ones. . . Consider also that one of the plaintiffs to this case, who was involved in a verbal confrontation with another student, testified that after he was called a “dumb redneck,” he did not respond because “it’s not worth my time beating somebody’s butt because they’re just acting stupid.” . . . Though a confrontation short of a violent altercation could amount to a disruption within the meaning of Tinker, not every disagreement or incident of name-calling will support the suppression of speech. And it should be left to a jury to determine whether this disagreement both constitutes a disruption and was sufficiently related to the Confederate flag to justify a ban.'

The facts of the case are delicate but it seems to suggest to me that my behaviour should be governed by another reaction’s to it. Take a look at the case and let me know what you think.
I can totally relate personally with those who wanted to deny the students' the right to wear that shirt. I know exactly what they were feeling. My very first roommate at Hofstra University in 1967 was a kid from the deep South. When I walked into the dorm for the first time, he had already been there for a day, and set up the room. Above his bed, he had hung a large Confederate flag. I told him that there was no way I was living with that in my room; that it was racist and wrong and offensive. We wound up living together for less than a week. I hated the guy.
Today, even though I would not make him my friend, I would represent him as my client. I guess that is the difference forty years makes.