Recent Broward Law Blog Features

Saturday, August 29, 2009

Teddy's Legacy to a '60's Activist

Ted Kennedy's sailboat the "Maya" sailing in Nantucket Sound at Hyannis Port
One of the saddest days of my life was the morning of June 6th, 1968, when I woke up to find out that Robert F. Kennedy had been shot and killed in a Los Angeles hotel after winning the California primary.

Like many young men of my generation, the vision of hope that the Robert Kennedy brought to political forums were inspirational to us. That he could be taken away by a violent act that mirrored his brother’s assassination only five years before was incalculable.

At his funeral, Teddy Kennedy, the youngest brother stood up and gave what I thought was one of the moving and remarkable speeches of my life. I had just spent the past two months at Hofstra University and in the Five Towns Democratic Club as one of its youngest presidents ever, actively organizing Robert Kennedy supporters. I was captured by his magnetism, motivated by his spirit, and enthusiastic about his success. I was devastated by his loss. It was all taken away, so suddenly.

It was about then, in the remarkable year that 1968 would become, I was learning that Life is more chaos than melody, more cacophony than harmony. It was in the searing flames of student activism that I learned that peace does not come peacefully; that rights do not come passively. Robert Kennedy helped inspire that vision. But it was the words of his brother Teddy at the funeral in St. Patrick’s Cathedral which have been etched in my heart and soul for four decades since.

I heard the words on a speaker while standing outside the remarkable church with a half dozen friends from Hofstra. Said Ted:

‘My brother need not be idealized, or enlarged in death beyond what he was in life; to be remembered simply as a good and decent man, who saw wrong and tried to right it, saw suffering and tried to heal it, saw war and tried to stop it.

Those of us who loved him and who take him to his rest today, pray that what he was to us and what he wished for others will some day come to pass for all the world.

As he said many times, in many parts of this nation, to those he touched and who sought to touch him:

"Some men see things as they are and say why. I dream things that never were and say why not."
And so, through smiles and sadness, I have tried to see the world that way.

As I turn 60, having dealt with medical issues that have in all likelihood limited my longevity, diminished my strength, and perhaps even reduced my resolve, I think of this man, at 77, sailing on his boat, legislating in the Senate, and championing still causes that were just and honorable. I realize that no matter how tired we are, how beaten back we have been, that we must still do what we can do, while we are here to do it.

Phil Ochs, the great songwriter of the ‘60’s, who gave so much, and so sadly took his own life because of inner demons that got the better of him, spun one powerful song after another. The one that comes to mind today is ‘When I’m Gone’:

Won't see the golden of the sun when I'm gone
And the evenings and the mornings will be one when I'm gone
Can't be singing louder than the guns when I'm gone
So I guess I'll have to do it while I'm here
And I won't breathe the bracing air when I'm gone
And I can't even worry 'bout my cares when I'm gone
Won't be asked to do my share when I'm gone
So I guess I'll have to do it while I'm here

And since I am not in public office, and not on the radio at the moment, I guess I will just stand my ground here on my own blog, while I can, when I can.

As Ted Kennedy stated a year ago, the dream endures, because even today, while there is much we have done, there is still much to do.
All Americans do not have access to health care, and it is next to insane that for a policy of five in my law office, my costs are three thousand five hundred dollars a month.

Gays and Lesbians are still becoming unwanting martyrs, as pockets of hate still strike out violently for no reason, creating the Matthew Shephards who we must mourn.

Immigrants bring their diversity to America, but are treated as slaves once were on migrant farms.

Minorities still populate the jails, and the jails are still indecent and inhumane, offering incarceration for more years, instead of inspiration for better lives.

Mental health patients lack the care and concern are families want to provide them, and the funding our government should give them.

The list goes on. There is always ways to make things that are good, better; ways to ease the pain, right the wrong, and facilitate a tomorrow that bests whatever we have done today. In Broward County, Florida, a false bastion of liberalism, there is an insane repression that makes our criminal justice system far more criminal than it is just.

Allard Lowenstein taught me that those I disagree with are adversaries to be persuaded, not evil to be defeated. The evil which needs to be defeated still exists, though, does it not?

And can anyone say of a man’s life more enriching words than to simply remark that your legacy is to “be remembered simply as a good and decent man, who saw wrong and tried to right it, saw suffering and tried to heal it, saw war and tried to stop it.”

Flaws and failures mark our own lives at different times, but the words Teddy Kennedy once spoke of his brother is now a phrase that marks the glory and the goodness of his own life.

Monday, August 24, 2009

Pavement Picasso Paints Justice Sotomayor

Chalk up another honor for Justice Sonia Sotomayor.

The high achiever, who made it to the nation's top court Aug. 6, is now getting a supreme compliment from the Picasso of the pavement.

Street artist Hani Shihada is more than half finished with a pastel portrait of Sotomayor, who's seen standing in front of law books in a black robe.

He chose a spot on Broadway near 97th St. as a curbside canvas because "the area has a lot of ethnic diversity."

Bronx-born Sotomayor, 55, is the first Hispanic to be appointed to the Supreme Court.

Shihada's many sidewalk renderings of celebrities and classical works of art have become sidewalk artwork over the past 20 years.

Last month, he created a tribute to Michael Jackson at 99th St. and Broadway. He expects to wrap his Sotomayor project by Wednesday.

Saturday, August 22, 2009

Jail or Bail: A New Flaw in a Flawed System


BY Norm Kent
In the past year, our county has successfully implemented an expedited first appearance process, which speeds up the bonding and release process for citizens charged with crimes. Still, there was a secondary problem.

For decades, one of the most glaring injustices at first appearance allowed for individuals who were charged with any violations of probation to sit in jail without a bond, for ludicrously long periods of time- until the jurists assigned their original cases got around to hearing a first VOP. Sometimes this would take up to ten days, sometimes longer, but in any case, the defendant remained in jail routinely.

The tragedy was, of course that many of those incarcerated were locked up on stupid charges and technical violations for which a judge might have not only granted a bond, they might have never issued a no-bond warrant. The misery festered in apathy, longer than it should have, because a lazy and self-indulgent defense bar failed to act as a cohesive group and demand meaningful change. Compound that with a lethargic judiciary never inspired to advance the rights of detainees, and a rotten situation lingered unconscionably. We should have done better.

Nothing better reflects how entrenched and toxic the process was then by studying the reaction jurists had to Howard Finkelstein when he first became Public Defender and challenged the insidious system of not giving even first time arrestees a meaningful first hearing. Think about it. If persons with no prior record were not getting a meaningful first hearing from jurists, where do you think probationers who had already pled out fit into that process? Very low on the totem pole, that's where.

By asking for meaningful bond hearings, the establishment tried to make Howard out to be a zombie trying to overthrow the judicial system. All he was asking for was that elected judges do their jobs justly so that citizen defendants could have their rights heard and protected. The establishment hated him for doing the right thing, but what is right is not always popular, and what is popular is not always right.

When defense attorneys came to court on VOP hearings, all too often we would review allegations that were insufficient so as to warrant a violation of probation to begin with. It did not matter. With probation, you always had one foot in the jail. And if some vengeful probation officer devised a scurrilous way to lock up one of their charges, they would have no problem employing a devious technique to insure the person they wanted locked up got locked up. Just like a cop with a pen and a pc sheet, it's a one way street. The judge does not read a report with the defendant's side of the arrest. Needless to say, the policing process for probation officers was always lacking to begin with, but that is another article altogether.

Of course, it would be disingenuous not to acknowledge many probationers did in fact grievously violate their probation by engaging in unlawful conduct which warranted immediate incarceration. That goes without saying. The system of instant incarceration without a bond provided a mechanism for those transgressions. Probation got their way.

What the system did not do was engage a speedy process which insured that persons who may have been unjustly arrested get a meaningful hearing sooner rather than later. That changed with Jay Hurley and the First Appearance magistrate process. Instead of a race to get out of a docket no judge wanted in the first place, a single jurist was given the discriminating task of scrutinizing the flawed process of detention. And it’s working successfully. But today I address a new flaw I have found in our already flawed system.
It needs IMMEDIATE attention.

Fast forward to Section 948.06, of Florida Statutes. This is a law which provides that an arresting officer may put a no bond-hold on any person who is arrested that is on probation. It is imposed even before the judge supervising the probationer knows of the arrest and has issued a warrant. Let’s see how this is playing out in magistrate court.

An individual on probation for say, possession of cocaine, has completed one of two years successfully. He owns a home. He works a job. He has a family. He has been doing the things he was supposed to be doing to comply with his rehabilitation. He is asking for no favors, but has a minor run in with the law.

Suppose that job he has is in a convenience store and he is a clerk. And underage kids are trying to constantly score beer or cigarettes. He unwittingly sells a six pack to a minor in the presence of a cop. The officer charges him with the second degree misdemeanor, which provides for a $25 dollar bond or a notice to appear. But say the cop does not like the clerk, because he has an underage teenager, and he wants to teach the clerk a lesson. So the cop does not issue an NTA, he promptly arrests the guy on the second degree misdemeanor, and simultaneously books him into the jail on a No Bond hold under Section 948.06. Police discretion at its worst.

Fortunately, the next morning the probationer comes before Judge Hurley, whose disposition, temperament and discretion in applying bonds has been commendable and extraordinary. Judge Hurley has seemingly been the perfect person for the job. He has been instrumental in reducing jail overcrowding, expediting the preliminary hearing process, and seeing through specious probable cause affidavits. All the things we were not doing for years we are now doing properly. With one judge.

Quietly overhauling an antiquated process which routinely denied defendants’ fundamental rights to counsel or fair bond hearings at first appearance has had consequences. By daring to set bonds where other jurists had imposed no bond holds already, Judge Hurley stepped on toes. The DCA has already intervened to rule that if a jurist has ordered a no bond hold, absent an exemption from that judge, it stands, and Judge Hurley can’t change that. All he can do is tell the defendant we will get you before that judge ASAP, and your case won’t linger needlessly. Plus, when you have a VOP, the magistrate clerk will contact a JA to advise you of the date of your first hearing, scheduling it as soon as possible.

But in those cases where defendants are booked on 948.06 holds, the jurist who may be supervising the probation has not yet signed a warrant. Thus, in those instances, many jurists are allowing Judge Hurley the judicial discretion to do the right thing and order a bond where appropriate.

So now let’s go back to our clerk who sold a six pack of beer to a minor. He gets locked up Tuesday nite by this angry cop, but comes to magistrate court on Wednesday morning. Judge Hurley reviews the PC, decides he is a responsible businessman arrested on a minor charge which presents no threat to the community. He releases the defendant on his own recognizance. But wait, the judge who had placed him on probation has not heard the case yet.

So also on Wednesday, the probation officer finds out her charge has been arrested. She could care less that Judge Hurley released him on the 948.06 violation. She may not even know it. Based on the arrest, she immediately prepares a warrant and presents it to the judge who supervises the guy’s probation. That same afternoon, the judge signs the warrant.

The probationer is released from custody on Wednesday afternoon due to Judge Hurley’s ROR. He goes home and sleeps off his nite in jail. He wakes up Thursday morning at 5 a.m. with a BSO deputy and a probation officer at his front door to take him into custody on the VOP signed the day before by the judge who placed him on probation to begin with.

Legally, absolutely nothing had changed. The first jurist heard the facts of the 948.06 hold, and ordered the defendants released ROR. Now the judge supervising his probation has effectively revoked his bond without a hearing.

Sure, you can’t do that you say. So you rush to call the judge’s JA and point out the inequity, and she says the “Court is booked for the day. I will give you a bond hearing next week.” Or she tells you instead “The judge only sets bond hearings after he reads your written motion. Submit it. We will call you; don't call us." But your client was remanded without cause or justification, you say, and we did not come all this way and initiate a brand new magistrate process so defense lawyers have to be hurrying to the 4th DCA because of a fatal flaw in the system.

Can this happen? It is happening routinely and repeatedly every day already, but because the defense bar is still a disorganized lot and Russell is too busy looking for new suits at Macy's, there has not yet been an orchestrated and forceful protest. Practically, Chief Judge Tobin could correct this monstrous flaw summarily by entering a Circuit-wide Order mandating that once the first jurist at magistrate has set a bond under the law, the supervising judge on probation may not revoke it absent a notice, a hearing, and a change in the circumstances of the case. Something we called due process. I think they still allow it in this county, at least in some courtrooms.

In another situation, a young man Judge Hurley wanted to release on a charge of not carrying a license could not get out and spent a week in jail because his supervising judge was on vacation and had told Judge Hurley he could not set bonds on his probation cases.
In another case, a young man held on a trespassing charge early in the week also had a no bond hold under 948.06. He bonded out, only to be remanded later in the week by the jurist supervising his probation. No facts had changed. The judge had. And that judge insisted on a hearing with the arresting officer present. Why is it almost double jeopardy? Because the kid is effectively being arrested twice on the same charge, first by the 948 hold, and then second by the judge’s new VOP warrant. We can’t have this insanity continue.

This is an emergency, and has to be acted on at once, and without delay. So much so I am willing to let this article even be posted on Jaablog, because these kinds of flaws in the system is what Jaablog has been best at exposing.

Students of bond law and practicing attorneys will say, 'whoa, wait': “Unless there is a change in the circumstances of the first bond, no second jurist can override it. Bond is a matter of entitlement and right.” Kevin Kulick has a DCA case on point. That would be true in most instances, if this was not a probation violation case, where the supervising jurist can violate probation if it ‘satisfies the conscience of the court.'; where the State takes the position that the 948 release by Judge Hurley is not binding upon the judge supervising probation. I talked with two ASA’s about this in the Appeals Division and both are intrigued that is a case of first impression. For the defendants, it's a case of second jailing.
But even defense attornys such as Herb Cohen point out and concur that the judge supervising probation has an absolute right to overrule the magistrate's first bond. After all, when I went before the magistrate, there was no warrant and he set a fair bond. Now the supervising court steps in and has signed a warrant. The circumstances have changed. A new bond can be set. So the defendant is remanded legitimately by law, but its impractical in its application. He goes to jail twice in the same week for the same thing.

The main point here is that if the judge supervising probation can take the position that he can and will override whatever the first appearance jurist did, it effectively neuters the first appearance judge. It means your client can go back to jail for the very same thing another judge had just released him for. And if the judge supervising probation finds himself in disagreement with Judge Hurley, he can also issue a blanket order to Judge Hurley saying you have absolutely no right to set any bond on any of my probationers. A group of circuit court judges already have, and that effectively neuters the first appearance system. Of course, Judge Hurley won't be there forever. So we are not neutering him. But we are setting up a system that instead of being innovative will be sterile in its infancy.
If judges wish to retain the absolute power to be the only ones to set their probationers' bonds, then so be it. Let us grudgingly at least provide an immediate and expedited hearing in that court. But let's not arrest a guy twice in the same week for the same charge. It does not compute.

So what do we do? We have a crisis here. We are letting people out of jail on Monday to arrest them on Tuesday. We have a set up a system which provides for Sanity on Wednesday and Insanity on Thursday. We have insured that the DCA will have to get involved somehow someway and render a decision because somewhere an attorney is not going to be able to work this out reasonably with a court.

In one case, last week, I tried to argue that the supervising judge had no authority to remand my client; that he took him into custody illegally, by revoking the bond of a previous jurist without a hearing. "Set a hearing, notice the state, we will argue it," said the court. While my client sits in custody.

Reducing this entire column to one sentence, the constitutional issue procedurally is whether the jurist’s remand of the probationer did not illegally supercede and violate the bond set by the first appearance magistrate. That issue MUST be resolved at once.

If the Chief Judge does not work out a vehicle to deal with this issue at once, the 4th will have to decide it soon, but only after, I dare say, hundreds of probationers went to jail twice on the same charge. That is not an innovation. That is insanity. Of course, we have been comfortable with that for years. But the idea was to eliminate it this time around.
Why do I say this is an emergency?
Why do I say it requires immediate review?
Why do I say this has to be resolved at once?
Because freedom is precious; because going home at nite to sleep on your own bed, in your own home, with your loved ones, that matters. And it is a right we should not take away lightly, for any reason, any time without just cause or due process.
Hopefully, things like that still matter to you.

Monday, August 10, 2009

NORML Pot Poster Stirs Legal Debate on Fair Use

NORML is America’s pro marijuana legalization. I serve on the national Board of Directors. Its theme for this year’s festival is ‘Yes We Cannabis.’

We decided to borrow the theme from President Obama’s successful campaign. To play on his words that it is time to turn a searing eye on an unsuccessful drug war.

What better way to play on it that draw off a 20 year old photograph of a younger Barack looking debonair and suave in a Panama hat while puffing on a cigarette? So we morphed the old photo a bit and a talented artist named Sonia Sanchez designed a popular poster for this year’s September 24-26 festival in San Francisco.

It seemed like we would get the usual suspects and quietly do our thing, fighting the good fight for what is right and just for Americans; that we would again renew our advocacy to end the foolish drug war. And we would do it in virtual anonymity once again, ignored by the national and local press despite the nationwide support for our organization and its cause. 20,000,000 pot arrests means how many million more consumers?

So what does it take to make the national news, Google, Yahoo, AOL, and CNN and Fox? Not the righteousness of our cause, but rather a threatened lawsuit from Getty Images because we inadvertently co-opted a quarter century old image of the President, and have been threatened with a copyright infringement suit we really can’t afford.

Now first of all NORML’s battle is for the legalization of pot, not to expand the fair use doctrine even though we believe this is one. We also believe that the photographer who owns the photo, a Minnesota college professor named Lisa Jack, has rights that we should not trespass on, so we will work at protecting her lawful entitlement. What is sad in a way is that the legal arguments over copyright protections have become more of an issue than the discussion about legalization.

Florida is in the backwoods swamps with this last battle. Medical battles have to be fought in courts with patients’ freedom on the line. Legislators still mine and protect laws which discriminate against minorities, students, the indigent, poor, and young people. With the expansion of forfeiture doctrines, even the middle class are being punished by draconian drug laws that allow forfeitures of your property, deny you driver’s licenses, and can take away your scholarships.

That is the battle NORML has to fight and for which I will be going to San Francisco, where I maintain a dual residence; where I could, if I wanted, to, use my medical identification card to lawfully consume marijuana. We will change our poster but our stance will remain forthright and correct, just and honorable. It will be to live in a world where people can responsibly smoke a joint without facing criminal sanctions.

This is the fortieth anniversary of Woodstock. Richie Havens opened the festival with the song, ‘Freedom,’ sometimes I feel like a motherless child.' When it comes to pot, sometimes I feel like we have had to wage this battle too long; that we all know the truth. We all know better.

We don’t need any more forums or panels or commissions to tell us what the Shafer Commission told us once before in 1972: pot laws must go, as they have for millions of Americans in 14 states and scores of municipalities.
And they will elsewhere as soon as all the adults who hold office remember who they once were and where they are now and that marijuana did not stand in their way. It would be nice if the debate over Obama and pot was not about his 25 year old photo at Occidental College. It would be nice if Obama the President said what Obama the citizen and Obama the candidate did: that pot laws are about as dated as Woodstock and have not been changed in 40 years.
The best way to celebrate the Aquarian Exposition of Love which featured marijuana on every blade of grass at Max Yasgur's farm would be for the President to say, ' Hey, its NORML to use pot. Just do it responsibly.'
Then America could have a debate that mattered.

Friday, August 7, 2009

Installation Luncheon Scheduled for Women Lawyers

The Broward County Women
Lawyers' Association


Friday, August 21, 2009
Riverside Hotel, 620 E. Las Olas Blvd.
Ft Lauderdale - 12:00 p.m.

Administering the Oath of Office,
The Honorable Patricia A. Seitz,

United States District Court Judge, Southern District of Florida

$40 for non-members; $35 BCWLA members; $30 Judiciary
Check-in will begin at 11:30 a.m

Reservations should be made to

Sponsorships available:

Bronze Sponsor $100
(2 tickets plus event recognition)

Silver Sponsor $250
(4 tickets plus event recognition)

Gold Sponsor $500
(8 tickets with reserved table plus event recognition)

To sponsor the event, please contact Rene Harrod at or
see for a Sponsorship Form

Tuesday, August 4, 2009

The Remarkable Hollywood Police DUI Video Case

Oh, you just can't make this stuff up.

A most disgraceful episode for law enforcement in Broward County, orchestrated by cops not paying attention to their oath, forgetting about a dashboard camera, and protecting their own, all things a citizen should fear most. All come in to play in the most egregious act by law enforcement that we have witnessed in years.
Four veteran Hollywood, Fla., police officers falsified a police report to cover up a crash involving a fellow officer.

The crash was caught on the officer's dashboard camera and on the audiotape, Sgt. Dewey Pressley, a 21-year-veteran of the force, is heard allegedly plotting to cover up what happened.

"Well, I don't lie and makes things up ever, because it's wrong," Pressley said. "But if I need to bend it a little to protect a cop, I'm gonna."

On tape, Pressley is also heard directing another officer on how to write the report.

"I will write the narrative out for you. I will tell you exactly how to word it so it can get him off the hook. You see the angle of her car? You see the way it's like this? As far as I'm concerned, I am going to word it she is in the left hand lane. We will do a little Walt Disney to protect the cop, because it wouldn't matter because she was drunk anyway," Pressley said.

Officers Dewey Pressley, Joel Francisco, Andrew Diaz and Community Service Officer Karim Thomas are all being investigated by Internal Affairs.

Meanwhile, the Broward State Attorney's Office has dropped DUI charges against Torrensvilas.
The conduct is disgraceful. Think about it again and again and it is mind boggling. If they would do this here, why not elsewhere? If they have done it now, have they not done it before? Who else are the unknown victims?

A sad day, but is it out of the ordinary or just out and very ordinary?
One wonders in a county that gave us Powertrak. A chief of police came to Hollywood to help clean up the department. I guess now he gets a new chance. Apparently the windows were still very dirty.

Cali Lawyer Suspended Over Blogging While Serving as Juror

I thought the first and best article to post on my return from the illness that has knocked me off line is one where the feature had to do with lawyers and blogging.

A 40-year-old California attorney has had his law license suspended for 45 days over a trial blog he wrote while serving as a juror. Because of a blog post by Frank Russell Wilson, an appeals court reversed and remanded the felony burglary case, reports the California Bar Journal.

Although reportedly warned by the judge not to discuss the case, orally or in writing, Wilson apparently made a lawyerly distinction concerning blogs: “Nowhere do I recall the jury instructions mandating I can’t post comments in my blog about the trial," he writes, before forging on with unflattering descriptions of both the judge and the defendant. He also failed to identify himself as a lawyer to the trial participants, the bar journal notes.

Still, the whole point of blogging and texting and googling comes into play in another court of law, does it not? This is the wave of the future, and I dare say, the tide of the present. Either ride the wave like a surfer on Black's Beach, or get sucked under the powerful waters of the new reality. If you make a fool of yourself in court on a Monday, someone will blog about it on Tuesday.

You can tell jurors not to google and be as effective as telling Iranian protestors not to gather in the street. You can torch a car for insurance and while you think you were alone, a gas station video camera catches you buying the gasoline. You can fly through a red light and some computer mails you a ticket the next day after the snapshot sent an email with your license plate on it to another computer which printed out your name. You think you are alone. You are not. George Orwell is here with you. It is 1984, but it just took till 2009 to get here.

People used to write in diaries, now their unedited fortunes appear on facebook, my space, linked in, and blogs. We use the 'Net to connect with the past and link to the future. What that lawyer did in that trial was ride the wave, but he bucked the court, disobeyed the judge, and paid a price.