Recent Broward Law Blog Features

Sunday, November 29, 2009

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

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

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

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

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

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

He won.

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

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

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

Saturday, November 28, 2009

Thanksgiving: A Cinematic Reflection

100 Movie Quotes (American Film Institute Top 100 Movies)


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

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

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

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

Friday, November 27, 2009

Give Children the Right to Counsel in Dependency Proceedings

Children Rights Advocate Howard Talenfeld

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 25, 2009

A Happy Thanksgiving for Ben Kuehne

Ben Kweller's 'Ya Gotta Fight': My Dedication to Ben Kuehne

The US Attorney has given Defense Attorney Ben Kuehne a very special Thanksgiving gift today. It has moved to dismiss the pending appeal against Gloria Velez and also moved to dismiss the entire indictment in the district court against Velez, Oscar Saldarriaga, and Ben Kuehne. Yes, there is much to be grateful for, but praise not too much an attacker who never should have launched an assault to begin with.

The motion simply says that it is based on the changed circumstances from the Court of Appeal's decision and in the interest of justice. Indeed. It was signed by Ken Blanco, Deputy Assistant Attorney General.

The entire South Florida Bar will be thrilled.

Ben Kuehne issued the following statement:

'On this, the day before Thanksgiving, I am gratified beyond measure that the United States Department of Justice has decided to abandon all charges against me. I have had throughout a deep and abiding belief that things would turn out well in the end. However, I did not know the end result would come about by decision of the Department of Justice. We are all fortunate to be able to say that we have a Justice Department whose goal is to try to do the right thing—not to win at all costs.

'Although I would have preferred not to go through this experience, I am also gratified that my case has been the occasion for an important precedent-setting legal ruling by the District Court, recently affirmed by the Eleventh Circuit Court of Appeals, and embraced by the legal community, in preserving and protecting the Sixth Amendment right to counsel. This ruling deals with an area of law that is close to my heart. It is to the right to counsel in criminal cases that I have dedicated much of my career at the Bar. I want to, once again, thank the many members of our community who have, over the past two years, so consistently expressed their confidence in my innocence. Throughout this period, I have continued to do what I have been trained to do, and what I love most, which is to practice law. I am grateful to the many clients who have reposed their confidence in me by seeking to utilize my legal services.

'I am also grateful to my amazing lawyers, John Nields, Jason Raofield, and Laura Shores from Howrey in Washington, D.C., and my good friend, Jane Moscowitz, from Miami. I wish to thank them for their skill, dedication, and commitment to me and my case.

'Finally, throughout this legal drama, my greatest strength has been the unsinkable spirit and love of my wife, Lynn, and our entire family. I want to thank them for knowing who I am, and of my sincere dedication to the law.'

What else is there to say? A good and decent man has emerged from the dark shadows of an unjust and indecent indictment. An honorable spokesman for social justice has won back his place at the table, weathered, weary, but sure to arise like a phoenix again.

Congratulations Sir Benedict. I think it's a good time to go to play the Ben Kweller video from You Tube.

Tuesday, November 24, 2009

Ramblings and Rumblings About Town

'Wrandom Writings'

There simply is no candidate more qualified than Chris Pole, who is again a finalist for a judgeship. Quiet dignity, a legal workhorse, incredible integrity, and thirty years of experience. How can he not get appointed?... Speaking of judges, there is a new book out about Justice Antonin Scalia: "American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia" (Sarah Crichton Books, 448 pages, $28), by Joan Biskupic. Biskupic also makes a strong case that among Scalia's biggest fans is the justice himself. "It takes courage not to be politically correct," he said. "If you're a coward, that's your fault." I think the Honorable Justice is a hundred years ahead of his time. But his time was 1698... And speaking of the Supreme Court, there is a nice article in the NY Times today that is worth reading, about the Supreme Court’s upcoming session: ‘Right and Left Join Forces on Criminal Justice’:

In some local news, good feelings for Attorney Ed Hoeg. His son appears in GQ this month as a model, on page 112. Ask him about it. He is carrying around the book… And speaking of books, if you run into CNN favorite, Prosecutor Stacy Honowitz, she is carrying around the draft of a great book for children, written in rhyme, detailing thoughtful ways to avoid child sexual abuse. This has got to get published… So why is a Volkswagen Bus the picture for this story? Ask Defense Attorney, John Marne, a Live Oak concert buff. You see, that would be Jon’s broken down camper on the trailer, which sadly died on its way to the Central Florida concert. Not to be beaten down, Jon placed the Bug Bus on the trailer, and still made it to Live Oak to catch the concert. Good for him. I love the outdoor festivals, and so does Mr. Marne. Even ran into him at the Bonnarroo Fest in Tennessee a few years back… By the way, do you know which retired bondsman (Bill Shephard) lives not far from there? Ask Keith Seltzer, he bought a vacation house by him... And speaking of bondsmen, you see Wayne Spath, the bondsman, in the courthouse often, but when he is not there, he may be fishing off the dock in his house in the Keys. He was recently there with, do you remember him- Pete Aiken, who has moved his practice to Fort Myers. If you need an ace attorney up there. Pete scored a great deal for me on one case recently… So too did Yale Freeman move from Miami to the West Coast. Naples, Fort Myers, is the way Broward was 25 years ago. Is that a good thing?

From the good news department: A winning Fantasy Five Ticket was sold in the little deli across the street from the courthouse, and the $200,000 winner was a courthouse maintenance man. Hey, that’s just a day’s work for Bogenshutz…Should let you know as a traffic hearing officer, whose duties require judging the innocence or guilt of those who are charged with traffic offenses, I have been seeing a lot more enforcement of Florida’s ‘Move Over Law’. It requires drivers who approach an emergency vehicle or tow truck stopped roadside with flashing lights to change lanes away from the emergency vehicles if able to do so safely and if not, slow down to 20 mph below the speed limit. .. You know what I would like to see, though- more citations issued to drivers who litter. I wanted to ram a guy the other day after I saw him just toss a McDonald’s bag out the window, but the fries were just too good. ..Speaking of driving, how much of a moron is the dude who led Lauderhill police on a high speed chase and bolted from his car only to jump in a canal at Pine Island Road and I-95 known for its random appearance of alligators? From the what was he thinking department, did you notice how NO cops went in after him?.. What is the highest breath reading you ever encountered on a DUI case? A Pompano woman driving the wrong way on I-95 in Martin County just blew a .37….

Maybe I am in the wrong field. I noticed last month a fee request in the Mutual Benefits case from the trustee was for $11 million dollars. The judge read it wrong. Thought it was $1.1 million. I am thinking I could live comfortably with either figure. And in the doozy of them all, the Madoff case, Trustee Irving Picard and the Manhattan law firm handling the receivership asked for $17 million in legal fees covering May through September. Not bad for a few months work. And not to be outmatched, after less than a month at work on the RRA debacle, Judge Stettin has asked for a cool $170,000. This new legal arena seems like a little bit more lucrative than even traffic tickets. But are the trustees supposed to make as much as the accused scammers?

Lots of office space in the 110 Tower, across the street from the Courthouse, now that Auto Nation has moved out, followed by a few big law firms. State Attorney Mike Satz already has space there, but why not allow the clerk to rent a floor to begin the process of moving away from the future disasters we know will befall the mold infested aging structure whose air we breathe every day? In fact, one criminal judge refused to move to civil because of the high level of allergens in the old wing. Makes me think we probably could also convert a few of the spaces in the 110 Tower to a new civil courtroom also.

Would a 50 year lease at a building already open and running adjacent to the courthouse be cheaper then a new building? And what ever happened to the recommendations of that courthouse committee? You know, Scott Rothstein served on it. Another clear example of how money bought position and power and led to poison. What the hell did he know about the courthouse? Should have appointed him to the new jail committee. At least then the experience would have served his future.

Gay California Couple Wins Spousal Benefits Claim

A federal judge today ordered compensation for a Los Angeles couple denied spousal benefits by the federal government because they are gay men.

U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt deemed the denial of healthcare and other benefits to the spouse of federal public defender Brad Levenson to be a violation of the Constitution's guarantee of due process and discrimination on the basis of sexual orientation, which is prohibited by California state law.

Levenson married his longtime partner, Tony Sears, on July 12, 2008, during the five-month period when same-sex marriage was legal in California. A ballot measure, Proposition 8, was passed a year ago defining marriage as between one man and one woman.

Reinhardt, who is the federal judge responsible for resolving employee disputes in the Federal Public Defenders office within the 9th Circuit, had earlier ordered the Administrative Office of the U.S. Courts to process Levenson's application for spousal benefits for Sears. The federal government's Office of Personnel Management stepped in to derail the enrollment, however, citing the 1996 Defense of Marriage Act that prohibits the recognition of same-sex marriage for the purpose of federal benefits or programs.

Levenson appealed, seeking either an independently contracted benefits package for his spouse or payment of the equivalent value of the coverage denied. Reinhardt ordered the latter, based on a "back pay" provision in the law covering federal defense lawyers' employment.

"Considering that the federal government won't give Tony the equal benefits package of other spouses, we are very pleased with this decision," said Levenson. "Is it equal treatment? No. Is it a good remedy? Yes. And we are appreciative of the judge's order."

Levenson said he and Sears have been keeping track of the costs of insuring Sears independently and estimate the back pay and future compensation will amount to thousands of dollars each year.

The judge's order is expected to resolve the injustice Reinhardt has cited in previous orders in Levenson's case. But it also recognizes the status quo of federal government rejection of gay marriage under the Defense of Marriage Act. Several other challenges by those denied federal benefits, like filing joint tax returns, are making their way slowly through the federal courts.

The Obama administration has spoken out against what it sees as a discriminatory policy toward gay spouses of federal employees but Atty. Gen. Eric Holder has also said his office is obliged to defend the practice as long as the Defense of Marriage Act remains law.

As to Florida’s place in all this, I go back to the case I won and lost and won again in Broward County not too long ago. Suing for compensation for gay spouses, the Circuit Court (Judge Leroy Moe) ruled I could make a spousal rights claim based on the Domestic Partnership Law of Broward County.

The Defendant, the State of Florida, appealed to the DCA and the count for consortium was struck, at least in part, because of the state law which bars gay marriage, noting another DCA's adverse ruling on the issue. To that we have now added a neanderthal state constitutional amendment potentially restricting the right of municipalities to pass laws which treat gay couples as married couples. This threatens even domestic partnerships.

So once again Florida law is decades behind the more progressive states. Of course, this is the only state where gays and lesbians cannot adopt children. Anita Bryant’s legacy still lives in the Sunshine State of Sadness.

Most of this AP article should be sourced and credited to Carol J. Williams

Georgia Court Rules Lawn Mower 'Not' Vehicle

Now I know what type of transportation to use the next time I decide to drink and use something motorized. John Deere, where are you?
Reporter Greg Bluestein reporting for the AP cites a Georgia Supreme Court ruling this evening, stating: 'A riding lawn mower may have four wheels, a powerful engine and can cost as much as a used car. If it's stolen, however, the Georgia Supreme Court concluded Monday that it's not a motor vehicle.'

The AP says the 4-3 decision overturned the conviction of Franklin Lloyd Harris, who was convicted of felony motor vehicle theft- after he loaded a Toro riding mower in 2006 from a Home Depot in Dalton into his van and sped away. Because Harris was a repeat offender, he was sentenced to 10 years in prison. I did not know Judge Levenson worked the Georgia courts :-)

Public defender Michael McCarthy told the justices that while Harris should still be charged with theft, he shouldn't be punished as if he had stolen a car. A riding mower is many things, a modern mechanical marvel among them, but McCarthy said it's not a motor vehicle under state law.

Prosecutors countered that the state defines a "motor vehicle" as a "self-propelled" device, and there's no doubt a riding mower meets that standard.

The state's top court agreed, concluding in an 18-page decision that the sentence should be overturned because the purpose of a riding mower is to cut grass, not transport people. They spent 18 pages debating this? Wow. I guess the Georgia Courts have lots of time on their hands.

"To be sure, a riding lawn mower is capable of transporting people or property and of driving on the street for short stretches," Justice David Nahmias wrote in the opinion. "But that is not what the machine is designed for or how it is normally used."

In a dissent, Justice Harold Melton argued that Georgia lawmakers specifically defined "motor vehicle" broadly enough to include riding mowers. It warned that the ruling "has interpreted the statute in a manner that creates conflict and leads to an absurd result."

The case, which lawyers said set a precedent in Georgia, comes as other courts around the country grapple with similar concerns about whether riding lawnmowers and similar devices should be classified as vehicles.

There was no discussion in the ruling over how the state defines motor vehicles for the purpose of alcohol-related arrests.

That's still a blurry issue in Georgia, where it's a criminal offense to operate a car, truck or other "motor vehicle" while under the influence of alcohol. Despite the Supreme Court's ruling, prosecutors might still pursue charges against those driving under the influence on mowers, too.

That issue also has drawn headlines across the country, as prosecutors from West Virginia to Oregon have charged suspects with driving under the influence after catching them prowling the streets on lawnmowers, golf carts and even a tricycle.

Monday, November 23, 2009

Can RRA Attorneys' Lose Earned Salaries to Clawback Law?

To be sure, the juicy part of the federal filing by the U.S. against Rothstein on Monday lists a number of his prized assets that were forfeited, like his 2009 Bugatti Veyron, touted as the most expensive street car available in the U.S. at about $1.7 million.

More striking to me, was the stunning revelation that could clearly place the firm’s principles in serious legal hot water, even to the extent that paid employees may be required to pay back some of their earnings to the government. Yes, it could arguably, actually happen.

You see, the government’s forfeiture filing from the Miami U.S. attorney's office said that Rothstein's now-defunct law firm, Rothstein Rosenfeldt Adler, in a single year earned about $8 million but paid its 150-person staff $18 million in salaries.

Specifically pointing out in its complaint that "The additional $10 million for salaries, as well as other expenses for operation of the law firm, came from the operation of and the funds generated by the Ponzi scheme." Assistant U.S. Attorney Alison W. Lehr is laying out the foundation for a ‘clawback’ of earnings but not just from those who were in the know, or perhaps, reasonably should have known.

The clawback provisions go after innocents who are revictimized by these schemes. The law is simply that you cannot lawfully acquire rights and title to stolen property. If the US is taking the position that nearly ten million dollars in salaries were paid to lawyers who had no right to those funds, who were reaping the benefit of stolen funds, why the government is potentially opening the door to making the lawyers pay back their illegally gained salaries.

You think it can’t happen? We have already been reading articles about how charities may have to give back monies, but so too could others who were unjustly enriched by the Ponzi scheme be required to give back monies they never should have lawfully gotten. Over 250 companies got clawback letters for close to $735 million in the Madoff mess.

If bankruptcy trustees have done this with hundreds of innocent investors in recent Ponzi schemes, such as the mini-Madoff Philip Barry scandal in Brooklyn, NY, and Madoff himself, why not here?

Who better to apply that standard too then lawyers? How is that for a new wrinkle? Of course, if the bundling of those political donations were also tied to kickbacks returning monies to the lawyers who made them, as rumor has it, then we may see some issues developing for all of them far more serious than just money.

Google Puts the Law at Your Fingertips

Thanks to Orlando legal blogger Richard Hornsby for the 411 on this piece.

With little fanfare, Google announced that they will begin publishing “full text legal opinions from U.S. federal and state district, appellate and supreme courts” in Google Scholar.

While most of this information is already available at each individual court website, the aggregation of each opinion in one place is an important step at demystifying how our laws are created, changed, and enforced.

Equally important is the fact Google will be providing reporter citation for each case – making use of cases from their site more reliable and authoritative. They also appear to be listing any citing cases, allowing for users to determine whether the law is still good, or if it has been overturned.

As Hornsby points out, 'this is bad news for companies like LexisNexis and Westlaw – both of whom charge an outrageous amount of money to access these case. While their fees were surely justified before the dawn of the modern internet, they can no longer be justified now.'

Prisoners Become Garbage in Pennsylvania

Remember years ago there was a garbage barge from New York that went floating along the Atlantic Ocean as it looked for a state to dump its load? No one wanted it.

Well, apparently in this country of ours, which incarcerates far too many people on innocent offenses, we do not have enough cells in each state to lock everyone up. So we are outsourcing incarceration, trading away prisoners from state to state. Pennsylvania has just joined the party, renting 2,000 prisoners to Michigan, which seems to have a host of empty prisons.

Here are two states headed in opposite directions on criminal justice reform. Michigan's incarceration rate is ninth in the U.S., but the state's leaders are changing that by expanding parole opportunities for nonviolent prisoners and engaging in innovative alternative to incarceration programs. They don't jail people for residue, and look for alternative choices when faced with drug abusers. In 2007, Michigan's prison population shrunk by 2.4% while Pennsylvania's grew by 3.7% ,

Pennsylvania's move deprives family members of access to their loved ones, limiting potential visitors and support networks. Many inmates will be moving over 600 miles, to the other side of Lake Erie. Their chances at improving their life decrease as they're moved further from their communities. It is not just unfair to prisoners in jail. It is unfair to their families who have done no wrong and do not deserve a sentence.

Overcrowding is a symptom of deeper problems in our criminal justice system, and states like Michigan have finally been struck with the inspiration to change incarceration policies at their root, rather than dealing with crowding after the fact. If only Florida were that bright. We are not. If only Broward County's prosecutors had more leeway. They do not. I fear that too much time in the sun has melted our brain.

Sunday, November 22, 2009

Man Hides 800 Pounds of Weed in Cantaloupes

Richard Coulton of Orlando got popped on I-75 for hauling 800 pounds of marijuana this past weekend. But his arrest adds to the wonderful ways people have, over the years, hidden pot they were transporting. Mr. Coulton chose to smuggle the weed inside cantaloupes.

Yes, we have seen weed hidden in gas tanks and hulls of boats and every which way possible. One day, we will just see it sanely growing in limited amounts on people's porches, and we will not have to hide it in jungles, grow it secretly in backyards, or hydroponically concealed in garages. One day, weed will be freed. And just this week, America's first medical marijuana cafe opened in Portland, Oregon. Jokes on David Letterman about it, but there, in that Western city you smoke a joint in a cafe and go home. In Florida, you can go to jail.

Let's face it, drugs are always being concealed somewhere somehow, and not just pot. A few months ago, the Mexican navy discovered more than a ton of cocaine stuffed into the bellies of frozen sharks. The Herald reports that a man in Phoenix was charged with stashing meth in his 2-year-old son's diaper, and one Michigan baby's gift from grandma was a little extra junk in the trunk during a bust.

Submarines? Everybody's doing it. In fact, after a sub carrying 10 tons of cocaine was intercepted off the coast of Guatemala, officials estimated that one-third of all cocaine entering the U.S. from South America arrives in a makeshift Red October.

Statues of Jesus made of drugs mixed with plaster- that was last year. Growing next door to a police station, that happened last week just outside of California. Cops on a cigarette break stumbled upon a growhouse with 85 plants. .

The more things change, the more they stay the same.

Saturday, November 21, 2009

My Last and Final Scott Rothscheme Story

Etherus, The God of Excess

Today the Sun Sentinel reports that a group of rich investors have sued Scott Rothscheme for being scammed:

Then there is the DBR story about how he sold someone on a settlement scam involving there not being enough pineapple in the pineapple juice so Dole was willing to Dole out 150 million to not get exposed. And the list goes on. No doubt that when Scott traded baseball cards as a kid, he would trade a Don Mossi for a Mickey Mantle.

To be sure, an abundance of legal issues remain unresolved. Will you, Mr. Rothscheme, get a bond? Will you be stuck with a public defender? Will a Nebbia hearing strip you even of your lawyer? How much time will you get? Will you bring others down with you? Will the monies be recovered? But I think I am through blogging about this punk.

1. He is a nefarious crook who scammed, hurt, deceived, and maybe destroyed the lives of lots of good people, including those who trusted him most. There is no telling just yet what the residual emotional and material impact of his schemes will be upon those around him.

2. He was greedy, self-centered, self-indulgent, and while outwardly seeming to generously endow noble charities he was a thief stealing from his friends, and ultimately betrayed and embarrassed those charitable agencies who aligned themselves with him.

3. By bringing down a law firm, he has wreaked enormous pain and hardship to hundreds of clients and compromised, perhaps fatally, their cases and claims, while at the same time stealing monies from trust accounts that the Florida Bar will never be able to adequately pay back.

4. Calling the media to announce he 'made a mistake' and is going to 'do the right thing' and insure that 'no one will suffer' while 'everyone is going to be paid back' tells me he is insanely delusional or worse, trying to carry the scam one step further by attempting to put himself in the best possible light for that moment he steps in front of a sentencing judge.

Ultimately, Scott's demise reminds me of a Twilight Zone episode. Seeking immortality and fame, a vicious criminal is granted one wish. He requests and receives 'eternal life.' Egotistical and brazen with his newfound prowess, he pushes his wife out a window of their high rise to her death. He defies the prosecutor and scoffs at him as he asks for the death penalty, knowing he can never die. But to his shock and chagrin, a fate he never imagined, the judge does not sentence him to death. Instead, the man who can never die is sentenced to life in prison. An eternity behind bars.

Scott Rothstein, for what you have done, you have achieved finally the ultimate notoriety you had sought. You are a true superstar, getting more press than even Shaq or Dwayne Wade, the studs you surrounded yourself with. But they are on the playing field still, and you have been thrown out of the game.

Like Etherus, the Santharian God of Excess, you have drank too much from the potion of lust and desire. You have immersed yourself in the waters of treachery and seduction. And so you have aligned yourself with the Alderdice Brothers and the Gold Bullion Exchange, with Bernard Madoff and his yachts. Your spirit will indeed live on. You will not be forgotten. We promise.

Before it closes, we will all gather and have a drink in your memory, at Bova Prime. But you dear sir, won't be there to see it. You instead will be doing an eternity, a lifetime, behind bars. That is your legacy. Proud now, superstar?

Mayor's Sister Cuts Down Big Tobacco

Our Broward Law Blog has been covering the unfolding of the Big Tobacco lawsuits, noting how Judge Jeffrey Streitfeld could be busy for the next 300 years as he is assigned to 3000 of them. But to the credit of the litigators involved, the cases are going forward. A journey of a thousand miles begins with a single step.

Legal experts predict that many of these suits will now gain momentum in Florida after a Fort Lauderdale jury ordered Philip Morris USA to pay $300 million to a former smoker who needs a lung transplant. To the surprise of many, the main plaintiff turned out to be the 61 year old sister, Cindy Naugle, of our own former Mayor of 18 years, Jim Naugle.

If it survives an appeal, the verdict would be the nation’s largest award of damages to an individual suing a tobacco. But Big T is not rushing out to cut a check. They will appeal, and as a general rule have absorbed product liability suits as little more than a cost of doing business since the seven biggest companies agreed to pay $206 billion in a master settlement agreement with 46 states in 1998.

From a legal standpoint, Florida, despite being one of those states, had a major legal ruling in 2006 which lowered a plaintiff’s burden of proof against a tobacco company. But it also created legal havoc.

The Florida Supreme Court rejected a singular class-action verdict and a $145 billion award to plaintiffs, saying smokers would have to sue individually for every case. So 9,000 cases have lined up across the state. That was the bad news.

On the other hand, the high court held that plaintiffs would not have to prove some key elements that had been upheld in the first stage of the class action: that nicotine is addictive, that smoking causes diseases, and that cigarette companies fraudulently hid those facts. Smokers in other states are still suing cigarette makers, he said, but they have higher legal hurdles. The Florida Supreme Court ruling is under appeal in federal court.

The real issue is the human one that gets lost in the legal process. You have a sensational verdict only because you have a very ill patient, one living with emphysema and needing a lung transplant she cannot afford. For the family it is about love and life. Will their sister and loved one survive the litigation and appeals? Will she get a chance to get the help and medicine she needs?

Big Tobacco’s lawyers have suggested that its industry could afford several hundred million dollars a year in legal losses if it had to. “That is a financially manageable issue,” he said. So to no one’s surprise, for them, it is not about Cindy Naugle’s life. It is about their pocketbook.

Welcome to corporate America.

Finally, here is something I did not know about. It seems there is a second round of class action cases evolving out of smokers’ claiming fraud and damages from past marketing of so-called light cigarettes.

Those products have been shown to be no less harmful than regular cigarettes because smokers inhale them more deeply. Congress, in landmark tobacco legislation earlier this year, prohibited the use of the terms “light,” “low” or “mild” in all cigarette labeling and marketing, effective June 22, 2010.

I owned a little newsstand on East Las Olas for a year. Nothing was more profitable then cigarettes, and nothing sold more than Marlboro Lights. I don’t know how they will market them next year, but I have always hated cigarette smoking, and never understood what is attractive or alluring about it. Except, if I believed the early ads, I would have been a great horseback rider, surfer, ladies man, and all around stud. But Big Tobacco never let up and kept on lying and lying in the face of so much scientific information to the contrary.

Cigarette ads made you think smoking was God’s way of uplifting you to success and being superhuman. The thing is so did Miss Cleo once try to tell all of us that if we only got her psychic advice our worlds would change too. And in the old black and white TV westerns, shown in the 1950’s there was always a snake oil salesman with a black hat and travelling carriage. That does not mean Cindy Naugle and millions of Americans were not defrauded. It is just that, well, buyer beware. Caveat Emptor.

Thursday, November 19, 2009

Activist Attorney Lynne Stewart Loses Appeal in NY- Ordered to Prison

Lynne Stewart, who is affectionately known as the “People’s Lawyer” for her tireless defense of clients in social justice and human rights cases, has been ordered to prison after her bail was revoked.

Here in South Florida we are worried about the unjust prosecution of Benedict Kuehne. We are consumed with the discombobulation of Scott Rothstein. But in New York, another lawyer has been convicted of a crime too, and I think it is a gross injustice which should probably outrage criminal defense lawyers anywhere and everywhere. I just don’t by into the government’s case.

Lynne Stewart had been an activist lawyer working on the cutting edge for decades, but in 2005 in New York, she was convicted on charges of supporting terrorism by purportedly helping an imprisoned blind Egyptian cleric smuggle messages to militant followers.

Not only was she ordered to prison by a U.S. federal appeals court this week, the judges ruled that the trial judge should consider lengthening the 28-month prison sentence given to her.

Lynne was a civil rights lawyer, sentenced in October 2006 to 28 months in prison for helping her client, Sheikh Omar Abdel-Rahman, contact the Islamic Group, which the U.S. government lists as a terrorist organization. Prosecutors said messages Stewart passed on for Abdel-Rahman could have incited violence in Egypt. And we are supposed to be upset about this why?

Evidence in the case against Stewart included a call the lawyer made to a Reuters correspondent in Egypt in which she read a statement issued by the cleric saying he had withdrawn his support for the Islamic Group's ceasefire in Egypt. For this she goes to jail? For conveying the wishes of her client to the media?

In its nearly 200-page ruling, the U.S. second circuit appeals court ordered Stewart to begin serving her sentence immediately. I am not rushing out to read the opinion and to be sure, the judges probably dotted every ‘I’ and crossed every ‘T’ to make sure they had a clear conscience in convicting the activist attorney. I still don't by it. This was an activist the Bush Administration had targeted for years.

I think the government was also playing the game like they did with drug attorneys for years, failing to clearly distinguish between their role in the adversary system and assuming instead the attorneys are simply adversaries, and as bad as the persons they represent. It’s an era of zero tolerance in New York, and I suspect the prisoners from Guantanamo won’t be getting too much of a fair shake with civil juries in Manhattan either.

Our government has always had to demonize someone and so they must necessarily find a whipping boy. In this case, it became a whipping grandma. Free Lynne Stewart. Lock up Scott Rothstein instead. He committed financial terrorism and has apparently hurt a lot more people.

Wednesday, November 18, 2009

Picking Up Pieces of the Past on a Wednesday Morning

The most important thing for me to do late on a Tuesday nite is to remember to move the garbage cans curbside for Wednesday morning pickup, but in the meantime..

I have joked recently in my blogs about how Bernie Madoff went to Hofstra College, my alma mater, and how weird it is that his class ring from 1960 was auctioned off by federal authorities Saturday in New York City. Never thought a class ring from the Harvard of Hempstead would be worth so much…then I spent yesterday afternoon reading about a Lawrence High School classmate I used to play stickball with at School #6 on Branch Boulevard when we were like ten years old. 40 years ago, in 1968, he was voted most likely to succeed by his classmates. But in 2008 what he succeeding in getting was a 20-year sentence for setting up a $400 million dollar hedge fund fraud, using his law firm as a tool. Hello, Scott Rothstein. Here is the article about Dreier, who also appeared on 60 minutes, about the brazen scam. Greed greed Greed. Kills ya'.

One passage in the article jumps out at me which could be a telling factor:
His epiphany, Dreier remembers, came in the summer of 2003, during a long walk he took on the beach near his vacation home, in Westhampton Beach, New York. He experienced a moment of clarity, he says, in which he saw the path he needed to take; unfortunately, it was a path that would lead to his downfall.

It happened one day when he found himself staring at a palatial beachfront home. His own house was inland. He had always wanted one right on the beach. It was at that moment, Dreier says, that he came to two conclusions. He would buy himself a big house on the beach. And he would get the money by dramatically expanding his firm, now renamed Dreier L.L.P. Dreier knows how ridiculous this sounds, that his criminal behavior can be traced to his yearning for a better beach house.

“I wanted to just, well, appease myself,” he says. “Well, not appease myself. Gratify myself … I was very, very caught up in seeing the criteria of success in terms of professional and financial achievement, which I think was a big part of the problem. But I thought it would make me happy. And I wanted to be happy again.”

Elsewhere, the news for the first amendment in Miami was not grand as the Supreme Court chose not to review the case of the book, Vamos a Cuba, banned by the School Board. I have written about it before, but here is the story on the front page of the Miami Herald:. Definitely my sentiments are with the ACLU and Howard Simon who commented that: ‘What the Supreme Court did was to give the School Board the power to cleanse the library shelves of various books `That sets a dangerous precedent.'’ Yup, it does. By the way, if you have any extra money to donate somewhere here at the end of the year, not that anyone does, the ACLU could use some.

Political correctness in schools, a very unhealthy thing. Speaking of which, it was nice to see Buddy Nevins- on his blog -back off of his totally unjustifiable criticism of Kevin Tynan. A lawyer who represents lawyers, with a passion for integrity and who served the Florida Bar as an Ethics Prosecutor, I think you can expect a new era of honesty on that school board, with a bulldog for fairness serving thereupon. And speaking of books, I have to get to writing a piece on my friend Tom Hayden, who I got to spend the day with in Miami after he lectured at the Miami Book Fair, catching up on politics and our mutual passion for baseball. It is hard to believe he is nearly 70, I am 60, and it has been 40 years since Grant Park and Chicago. Here is a link to Tom's new book, which, unfortunately, though hundreds showed up for his SRO talk, none of his books were shipped for him to sign- ouch;
Also at the festival, with a line out the door early Saturday morning, and overwhelming popular acclaim, some dude named Al Gore.

I also saw that a top DEA agent I have criticized in a blog about his drug war righteousness may soon be out of legal trouble. Magistrate Robin Rosenbaum has said the charges against him should be dismissed…Noticed also that the driver responsible for reckless driving and the fatal crash on I-95 Monday morning has tickets for careless and reckless driving from earlier this summer. How not surprising… So who is more of a threat to the public safety, that dude or the young San Francisco pitcher, Tim Lincecum, likely to win the Cy Young award again tomorrow for the second year in a row, busted for 3 grams of pot in Northern Washington. Hell, in northern California guys have that much residue in their carpet. Anyway, just did another legalization piece this week online for Counterpunch about how the American Medical Association has altered its stance on the rescheduling of marijuana from a Schedule 1 substance drug with no medical use to a lesser standard. Nice of them to catch up with the rest of the world.

Was asked yesterday how I feel about the collapse of the national gay media in local markets with the bankruptcy of the Blade newspaper chain. It means the paper I founded ten years ago this month, and sold to them in 2004, is now extinct. I feel devastated, is how I feel, and I am absolutely sure there needs to be credible GLBT journalism in the South Florida community. Though there was a nice piece in the South Florida Business Journal and the Miami Herald, I posted about it on another one of my blogs:
Later, and thanks for stopping by.

Sunday, November 15, 2009

What About the Clients of RRA?

For our Scott Rothstein joke of the day, we turn to an anonymous blogger who posted on the Southern District blog that the movie about Scott will star Nathan Lane. What a great fit. Maybe that is where Scott devised everything to begin with. He watched 'The Producers' as a young boy. And guess where Max Bialystok winds up? In jail.

Since the start of the Scott Rothstein revelations, I have been pleading for the journalists covering the story to talk about the clients, the clients, the clients. What is being done to protect them?

Think about it, the first day we heard how Rosenfeldt and Adler sued Rothstein to protect the disassembling ‘firm’. Then we heard from another lawyer how he wanted to protect the investors. Then we heard from random bloggers how the ripple effect of this legal catastrophe might impact the political careers of those connected with the firm. Then we heard how their lawyers need lawyers.

Next, then we heard how the implosion was impacting waitresses in the Rothstein empire who legitimately and understandably are concerned about losing their jobs.Then we heard about how people who made money from some of the schemes, including charities, might be the victims of clawbacks, a legal way of recouping funds from those unjustly enriched. Now the FBI and Mike Mayo want to hear from all the victims, and each have given you an email address to write to them, but Mike might be more fun to talk to. OK Mike, so here goes. Me. I am a victim.

Today, I confess. You see, I am one of the RRA clients. I have a significant personal injury case, maybe worth hundreds of thousands of dollars, with them. The kind that Scott was apparently selling to car dealers who have too much money and no smarts. In the midst of litigation, I was just ordered to produce to my attorney- and then supply to defense counsel- certain discovery documents within ten days- almost two weeks ago, OR I faced dismissal of one of the counts of my claim. Trouble is no one at RRA who was handling my case could be located anywhere.

As you can see from the below pleading published at South Florida Lawyers blog, the RRA team was virtually shut down. There were no servers. There was no email. There may have been no support staff working critical cases with various time deadlines which predated the Debacle.No one could tell me if the papers on my own case were filed in a timely fashion. Fortunately, for me, I am a lawyer. I took the bull by the horns and said ‘I can do this myself.’ So I did. I sent the required paperwork to opposing counsel on my own. Most clients can’t do that. Most clients would not know to do that. And all clients are not supposed to do that, and should not do that. I did anyway. So thinking to myself if this can be happening to me, with 30 years in the fold, and connections to almost all the players at RRA, what is happening to everyone else?

I mean the lawyers their are drowning, up to their ass in alligators, and I have got to believe there are things on their minds besides their cases and clients. Like their asses, their jobs, their lives, their next paycheck. I can’t- to the non lawyer- effectively communicate the nuclear shellshock which has leveled the firm as surely as if it were bombed in a terrorist attack.Well thanks to the SFL blog, here is the point I am making. Clients are at risk. Look at how desperate the lawyers are, subject first to the whim of opposing counsel, and second, the discretion of a judge.You read this and YOU KNOW that client’s interests have in fact already been compromised in multiple cases by this law firm’s collapse.

Suppose you have waited as I have two years for a trial and now you have just been rolled over to another docket three months down the road because your lawyers are no longer ready. I am screwed and deferred again. Anyway, one issue I have advocated the past week I submit again for judicial consideration.

The chief judges of our local circuits should issue an administrative order mandating that time limitations on any RRA cases and pleadings be appropriately tolled so as to preserve client rights and interests. Now you say, why an order? Why not let each judge decide? Easy answer for me.Because folks, after 30 years of litigating cases in this cesspool of corruption, I do not trust judicial discretion all that much. So the right thing is for each chief to protect every client.

Here is the SFL pleading that is so revealing in this regard. Look at it, they are begging, virtually begging for an extension. Suppose they don’t get it? Who gets wiped out? I will tell you, who- the clients, of course.
3. On November 3, 2009, a receiver was appointed for Rothstein Rosenfeldt Adler (“RRA”), counsel for plaintiffs and third-party defendant, due to its dire financial condition. Additionally, a search by law enforcement shut down RRA’s computers for 3 days last week. RRA’s account with Westlaw has been suspended, thus making any legal research a difficult task. Numerous personnel have already left RRA and it is anticipated that additional employees will depart in the near future.

4. Despite these obstacles, the undersigned attorneys remain working and have continued to diligently attempt to represent their clients, including the plaintiffs and Ebway in this action, to the best of their ability despite these incredible unforeseen circumstances. It is anticipated that counsel will have to relocate their practice in the immediate future on an expedited basis. In light of these factors, it is simply impractical to comply with the present deadlines. The depositions which remain to be completed require travel to Michigan. Plaintiffs and third-party defendant have sought to schedule the depositions they desire to take within the existing discovery deadline but GFM refuses to schedule those depositions because GFM personnel are out of town on a business trip during the days requested (which are the only days left before the deadline to do so).

Alternatively, plaintiffs and third party defendant have proposed a schedule (also taking into account the upcoming Thanksgiving holiday) to complete the remaining depositions that all of the parties desire to take and to provide additional information requested in GFM Corporation’s Motion to Strike Expert Witness for Failure to Comply With Disclosure Requirements [D.E. 140]. GFM’s counsel has expressed a willingness to accept this proposed schedule, but to do so would require an extension of the discovery deadline until December 4, 2009. For these reasons, it is respectfully requested (with humility and a plea for compassion) that this Court enlarge the time through and including November 23, 2009, to response to the Motion for Summary Judgment and until December 4, 2009, to complete discovery.

In closing, I have some good news for myself and I suppose lots of clients of RRA. Today I heard that many lawyers at RRA, including my own, began writing letters to their clients advising them of the status of their case, giving them an option to elect one of three alternatives, and to advise RRA accordingly.

I will summarize the letter for you. I have not seen it on any of the other blogs. I guess I am breaking news but the news in this case is breaking me. I am not happy. I feel victimized, and while I can easily rebound because of my position, I am just thinking how unfair this is to so many others not similarly situated; how many other clients might be out there really getting screwed whose stories are not being told, and whose losses will be far greater than mine ever will be.

So the letter from RRA lawyers gives clients three choices. Option 1 is to keep the case with the firm, fat chance of that happening.

Option 2 is to keep the case with your personal attorney, who has written me a letter advising me he is leaving the firm and going into solo practice.

Option 3 is to take the case away, retrieve the file, and move it to new counsel of my own selection. I have not made up my mind, because I am not pleased with what happened. But then, who is?

I know to those members of the public who read this blog I would like to apologize for how the legal profession that you already distrusted has disgraced you again. I can't imagine how you feel. No wait, I can. I do. So let me share the feeling with you. It may not be lawyerlike, but it sucks.

Breaking News: Scott Rothstein to Serve Tuesday as Guest Auctioneer at Lauderdale's Bernard Madoff Yacht Auction

Okay, so I took some liberty with the headline. Shoot me.

Pictured above, for your bidding pleasure, is a Bernie Madoff yacht, presently anchored and to be auctioned off here in Fort Lauderdale on Tuesday morning. While you are checking it out, Scott Rothstein's boat is also there, in a new federal wing called 'Ponzi Row.'

Meanwhile, Bernard Madoff's name gave extra value to his onetime possessions Saturday as they were auctioned for more than $1 million in New York. The auction conducted under the eye of U.S. marshals at the New York Sheraton Hotel and Towers brought in twice the expected amount, The Wall Street Journal reported. The 200 lots of possession once owned by Madoff and his wife, Ruth, included Rolex watches and diamond jewelry along with clothing and old yard signs.

Some of the Rolexes failed to sell. But an online bidder offered $14,500 for Bernard Madoff's personalized Mets jacket, almost 30 times its low estimate, and his class ring from Hofstra University, with a low estimate of $240, went for $6,000. Now this bugs me. No class ring from Hofstra is worth $6,000.

I am, of course, an alumni of Hofstra University. Graduated the school in 1971. The law school in 1975. Mr. Madoff went there before we became a university. He actually graduated from 'Hofstra College' in 1960. I am not too proud of this allegiance. Would have preferred my school getting written about if it was about a national championship.

I suppose he is now our most famous alum, and indeed was serving on our Board of Trustees when his billion dollar scam went public. Now he may be serving as a trustee but if so, it is in a federal prison. Guessing we don't have any special plaques to give out to him right about now. But I am willing to bet one of my fellow alumni bought up his ring. Probably to bury it.

Three boats and a Mercedes go on the block Tuesday here in Fort Lauderdale. Does anyone doubt if Scott were not about to be indicted, and his schemes were still not known to the public, he might in fact have been one of the bidders, parking that Madoff Mercedes right in front of Bova Prime? How the pendulum swings.

Think though, about this. A week ago I did a light hearted column about how the feds will have to raise monies to pay back Scott's investors by selling the autographed memorabilia from his office on E Bay. Guess what? There is a lot of truth in humor. When you see they are selling the shoes belonging to Ruth Madoff, and Bernie Madoff's class ring from 50 years ago, can Dan Marino's and Al Lamberti's autographed picture with Scott Rothstein be far behind?,0,2535443.story

Friday, November 13, 2009

Seals Win Safety in Southern California!

We have our protected turtles on the Fort Lauderdale beaches, and they have their coveted snail darter in the Tennessee Valley.

One of the reasons my law school roommate, Eric Goldstein of the Natural Resources Defense Council, became a lawyer was to become a legal environmentalist. We both knew that we could not trust developers and our government to protect our lands or our country. The rule of governance, outside of incompetence, is exploitation and expedience.

So today I blog about a carefree colony of seals now living free on a San Diego beach after a ten year legal battle that wound up in and out of state and federal court, with cover stories in the New York Times.

You have got to understand. Seals have rights too. I mean, I know, as humans, we think all animals are lesser than us, and seals don’t exactly clean up after themselves, so they can be kinda’ slimy. About 20 years ago, a small group of them planted their flag on their own Plymouth Rock, a small cove in La Jolla, just south of San Diego. Actually, it gets worse.

The area they parked and showed up in has been known since 1931 as ‘Children’s Pool,’ deeded to the city of La Jolla as a public trust. But the kids and tourists love the seals, and so did the Sierra Club. They went to court and on Friday, a judge ruled the steals can stay.

Bryan W. Pease, a lawyer for the Animal Protection and Rescue League, said, “This is the final conclusion of a battle that has raged for several years.” I don’t think so. Not so sure.

The judge ruled they can stay because the court took judicial notice of a new state law that gives the City Council a final decision on whether to allow them. Which means the legal battle may only be over until the next political race. It means that in future elections those seals will be a recurring cause célèbre. Should they go or can they stay?

All I know is that right now they are safe, in a beach I love to visit whenever I am in Southern California. It is not far from Black’s Beach, where you can go hang gliding off a very large cliff and sail over the very spectacular Pacific Ocean and see some very bare, bronzed bodies in a clothing optional universe.

The Beach Pacific is pretty big, and the seals have probably been living their lives peacefully, without worrying about the legal battles they were the center of. I wish my life were so tranquil. Hope to see them next time I am out there, which should be soon.

Thursday, November 12, 2009

Baseball Season Continues for Dodgers in Divorce Court

I have got to blog about something other than Scott Rothstein and what better to redirect my attention then Baseball.

So as Law Blogger Robert Ambrogi points out, “One World Series ended last week but another is just getting started. Yes, the New York Yankees triumphed over the Philadelphia Phillies. But in the Family Division of the Superior Court in Los Angeles, what may prove to be the World Series of divorce cases is only in its opening innings. And one diehard baseball fan and self-described law nerd has launched a blog to help us keep score.”

The divorce at issue is that of Frank and Jamie McCourt. Frank is the owner of the Los Angeles Dodgers, which he bought in 2004 for $430 million. Jamie is a lawyer who was chief executive officer of the Dodgers until Frank fired her last month. A few days later, on Oct. 27, Jamie filed for divorce. The next day, Oct. 28, Joshua Fisher launched his blog, Dodger Divorce. This is hilarious, isn’t it?

The divorce, after 30 years of marriage, is already proving to be ugly, with Frank accusing Jamie of having had an affair with her driver and of having performed poorly as CEO. For Dodgers fans, however, the central issue in the divorce is proving to be ownership of the team. Frank says he is sole owner while Jamie contends she is a co-owner. And me, as a diehard Blue Dodger fan, all I care about is how will it affect the Dodgers in the offseason. I mean, they need an ace pitcher. A CC Sabathia. A Roy Halladay. That is what kept them out of the World Series the last two seasons, after winning the first round of the playoffs in sweeps against the Cubs and Rockies.

The Los Angeles Times reports there is a legal battle over some pre nups or post nups or whatever. I have no clue about that stuff and would not purport to blog about it. I just know that thirty years ago when my East Las Olas Boulevard office was shot up and I was nearly taken out, all the local media thought it was me- the young, pot smoking hippie lawyer in jeans and a vest that was being targeted. It turned out they wanted the divorce lawyer in the suite next to me. You see, criminal lawyers are civil to each other. Civil lawyers are insane.

Frank's court filings say it was Jamie, "an experienced businesswoman and attorney who actually specialized in the practice of family law for many years," who was the driving force behind a post-nup. "When Frank McCourt acquired the Dodgers in February 2004, the organization was losing tens of millions of dollars every year. Jamie McCourt repeatedly told Frank McCourt and their attorneys that she wanted to protect herself from the financial risks associated with her husband's businesses -- most particularly, the risks associated with ownership of the Dodgers."

As the unofficial umpire of this dispute, Dodger Divorce calls the ownership issue for Frank. "If Frank wins on the post-nup, he probably keeps the Dodgers," Fisher writes. "If Jamie wins, we'll have to wait to see if one has enough money to buy out the other. Based on the very limited information I have in front of me, I like Frank's chances more today than I did yesterday."

I have no clue. I just know the Dodgers need a pitcher, and the same way the World Championship Yankees went out and landed CC Sabathia and AJ Burnett last Fall, and it carried them to the trophy, so too do I know that LA needs to sign Roy Halladay and one more arm. Not to mention a younger third baseman, a new second baseman, and oh, did I mention a new pitcher? So to hell with the divorce. Find me an owner. Get me some players.

How Can Smart Rich People Have Been So Stupid?

I go back to my column the other day, the one where I asked again how can smart people be so stupid? How does a guy who becomes a millionaire businessman selling cars fall for a scheme where he sues someone for a million dollars and then believes that his attorney got a $23 million dollar judgment which he can only collect if he puts up $57 million? I mean, really folks, help me out here. How do you get so rich being so stupid?

So today's reveations from the FBI suggest Mr. Morse was not alone in his lack of wisdom.

Number One. Sayeth the FBI: Attorney Scott Rothstein's alleged investment scam may exceed $1 billion dollars in victims' investments. It is no longer Madoff Lite. It is Made Off South. And they need your help.
They set up a hot line and email address for you to contact them if you too have been burned by this forest fire. As usual, like most government e-mails, the email address requires a doctoral address to access, but here it is:.
The number: 1-800-CALL-FBI, or 1-800-225-5324. Select the "Rothstein Rosenfeldt Adler'' option, which is Option 3. If Miss Cleo answers, you are in trouble. How is she doing anyway?

Number Two. Rothstein is believed to have run the scam from his offices at the Rothstein Rosenfeldt Adler law firm, which is going into involuntary bankruptcy. I feel for the lawyers, but I am concerned and state again how pathetic it is that in the sea of writers and flood of articles coming out of this disaster no one is writing about the hundreds if not thousands of clients left in the lurch. I just wish I could figure out what to do for them, but how do you call people you can't reach. I hope they have the sense to be seeking out new counsel.

Number Three. It would be a good thing if the Chief Judges in the tri county area issued administrative orders tolling legal responsibilities and time compliant mandates within those cases and claims that are being prosecuted by RRA lawyers. At the same time, each judge with an RRA case ought to hold an emergency status conference with notice to the clients to appear.

Number Four, law firm co-founder Stuart Rosenfeldt stepped down as its chief executive officer Wednesday, handing off full control to court-appointed receiver Herbert Stettin, a retired Miami-Dade judge.
Bankruptcy attorneys hired by the firm said at a Thursday court hearing that they will consent to the involuntary petition for bankruptcy filed by creditors earlier this week.

"In plain English, this means the bankruptcy will move forward," Stettin said.

But what Judge Stettin does not make clear is that a US District Court Judge may appoint someone other than him to supervise the bankruptcy and act as a trustee, which would divest the respected but retired Dade jurist as the man to go to in this mess. We will see if the parties work that out.

Number Five. If you read all the other bloggers covering this, especially The Daily Pulp with Bob Norman, there is a clamor to demand Scott Rothstein's arrest. Or at least an emergency suspension from the Florida Bar. I don't know about you, but I don't see him taking any cases right now. Anyway, the FBI said they do not want to be pressured into an arrest until they have adequately formulated all their charges, and put their ducks in order. How many people though were sitting ducks? The FBI now says thousands.

I will tell you this if I were the judge whose order Scott Rothstein purportedly forged, I don't need the FBI or anyone else at the Florida Bar to tell me what to do. You call Mr. Nurik, Rothstein's counsel, and you inform him that a 'Rule to Show Cause Hearing Why He Should Not Be Held in Contempt' is being held at 4 o'clock this afternoon, and you lock his ass up sua sponte.

Scott, I have to tell you this, I just don't know who was dumber, you in thinking you could pull this off forever, or all the people around you for not demanding a better accounting of your reckless flamboyance. You will need those watches in the picture above. You are going to have plenty of time on your hands.

But this column really isn't so much about you.
I still want to know how could so many rich people who were supposedly so smart manage to be so stupid?

Here is the fake order, courtesy of the Sun Sentinel or South Florida Lawyers or one of the many bloggers uncovering this massive fraud. In my 35 years as a lawyer, litigating everything from minor misdemeanors to murder in the first degree, I have never seen such an outrageous act of misconduct by another attorney, and the courts and authorities have an obligation to act at once and without any further hesitation.

Tuesday, November 10, 2009

Computer Virus Opens Door to Child Porn Charges

I had a horrid experience today, discovering during the lunch hour that my retired site, had been hacked into by an unknown party who basically seized my online newspaper and instead uploaded very graphic pornography onto the home page of what had been a news site.

In a frenzy, I tracked down my webmaster, server, and IT people to learn that the site was being run by an older type of program which had not been modernized, and was thus left open to corruption by third parties. Indeed, it had been pirated, commandeered, and stolen from me.

The tekkies who know of this kind of thing told me “You are running a very old Joomla installation (1.0.12) that has many security holes and is no longer supported, you'll have to upgrade to the latest version ASAP otherwise your site will be hacked again and your account will be subject to service suspension or termination per our ToS.”

Ironically, I stopped publishing the exhasutive news site months ago, and just re-linked it up to the 'Net so interested readers and researchers could at least access our first year of news online. Now I have had to temporarily shut it down again until I can clean it up and find a better security system. But there is a reason why this is more a story for my law blog than my gay news blog though. ( Here’s why.

Just yesterday, Debra Weiss on the ABA journal posted an article about how computer viruses can upload child porn to your computer, the result of which has led to the arrest and prosecution of numerous individuals.

A few months ago we did a story and joked about the guy who said his kitten downloaded child pornography to his web site, but the Associated Press has done an investigation this year which revealed that innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon child porn placed on a PC through a virus.

AP cited the case of Michael Fiola, a former investigator with the Massachusetts agency that oversees workers' compensation. An Internet bill for his state-issued laptop showed he was using more than four times the online data of his colleagues. An investigation found child porn stored in a folder that contains images viewed online.

Fiola was fired and charged with possession of child pornography. He spent $250,000 on legal fees before prosecutors dropped charges. An inspection of the laptop had found it was programmed to visit as many as 40 child porn sites per minute.

"It ruined my life, my wife's life and my family's life," Fiola told AP.

While some prosecutors have discounted this, I think of the Innocence Project, revelations relating to DNA, and how many times people in power are wrong. So there is a moral here, and it begins with protect your computer from unknown users the same way you don’t lend your car to your best friend’s son.

Should Scott Rothstein Get A Bond When Arrested?

My words for Scott have so far been tempered and restrained.

Today they are harsh. The meteor has landed. Flamed out.

Yesterday was a special day for those oozing Scott Rothstein juices. So if you are going to interview him, now would be the time. There are no cameras or cocktails in Federal Court.

First, he who has been purportedly secreted and hidden by the Feds shows up at the Capital Grille for a Martini but winds up in a You Tube interview with New Times investigative reporter Bob Norman. Special.

Second, decidedly uncomfortable with the negative stream of publicity he has been getting, and clearly against his attorney’s advice, Scott Rothstein chooses to give an ‘exclusive’ interview to Channel 7 reporter Rosh Lowe. Foolish.

Third, while Scott is chatting, Feds are seizing. Legal authorities, armed with warrants have now entered his home and carted out reams of legal documents to be sure. But that was the sideshow. The trailers which landed on his properties carried away Rolls Royces and sportscars. His boat was taken to the same marina where the Feds brought Bernie Madoff’s a couple of months ago. Ouch!

Fourth, in court, lawyers for investors of his now unraveling Ponzi scheme have filed suits demanding the property be held in trust for them, which suggests they will have to do battle with his former law partners that want the money for themselves. If the money came from firm accounts, who gets it first, the lawyers, the trusts, or the investors in a scheme oiled by firm funds?

Yes, this is all really happening. But now that he has spoken to the press, there is a few things I would like to say to Scott, directly.

Number one. Scott you told the reporters yesterday you made a mistake. No, Scott, you did not make a ‘mistake.’ You, sir, committed a crime. If I could slap you in the face, and alert your moral compass, a mistake is an inadvertent and unintentional lapse where maybe you err for a moment and correct course. A ‘mistake’ is not when you consciously and deliberately over a course of time commit acts which are nefarious, fraudulent, deceptive, harmful, and outright criminal while rewarding yourself at the expense of others.

Number two. Scott you told a reporter yesterday you wanted to do the ‘right thing,’ so you came back to set things straight. Let’s make this clear. The ‘right thing’ would have been not to do the ‘wrong thing.’ Please don’t lavish yourself with false praise. You have not 'manned up.' You have chosen to face the music and do the honorable thing after getting caught, which was inevitable. You are simply doing what you had an obligation to be doing all along. That is better than leaving us a suicide note from Morocco, but this is no reason for self-congratulatory lauding.

Number three. Scott you told reporters yesterday that you had ‘very few friends left.’ Scott, your true friends and family will stand by you in a time of crisis because they love you for who you are and what you have been, regardless of how many toys and boats and big shots you surrounded yourself with. Those people you do not have to worry about it. Those are the people who did not sign autographed plaques in your office. Those are the people whose pictures you placed on your desk because you love them and they love you. Autographs not required.

Scott, even you had to know many of the people you have circled the wagons with the past few years were there for jobs and a never-ending cash flow and cycle of good times you poured their way. They were never there for you. They were there for your money, your blitz, your flash. You took them all for a ride and they went along willingly, so suffer them not. They will survive. Leeches are bloodsuckers who will find their way to other hosts.

The thing is Scott many of your partners and associates in the law firm are decent lawyers who joined with you because they believed you were honest and real and genuine. You have stained their lives forever, tarred the South Florida legal community unimaginably, and betrayed the trust of honorable colleagues and professionals who befriended you. Guess what, you do not deserve them as friends.

You can’t pay back the scarlet letter they will now wear, the jobs they will not have, the clients that will not go near them. Do you really think that when my personal injury case goes to trial I am going to want even one of the jurors to remotely think one of your firm’s named partners is my attorney? Do you think it is going to be easy for them to list on their resume they spent the last few years at RRA without someone laughing behind their back?

Number four. Scott, you said you want to pay ‘every penny back’ to everyone who was wronged except the people who ‘participated in this.’ So now the bank robber is determining which of the account holders will be repaid, huh? Does not work that way. The Feds, the Receivers, the Trustees in Bankruptcy, they will decide that for you. Your decision making days are over. From what it sounds like, they will be diving for dollars in a pile of pennies. What were you thinking?

Number five. They are taking this stuff from you with a warrant. You are not ‘voluntarily’ giving it back. Because, just a friendly reminder again, you did not make a ‘mistake.’ You do know this, right? You are not fooling yourself? I say this because you apparently, much to the regret of many of those of us who liked you, have committed several major crimes and it is more than likely you will now go directly to jail. You will not pass 'Go'. You will not collect $200. You played the game Monopoly and lost.

Number six. You do understand the major immediate legal issue you are facing upon your arrest is whether you should you be entitled to a pre trial bond. I suspect if the financial fraud is anywhere near the allegations the government is making you may be denied one. They are going to argue you fled the country once, that there are illegally gotten gains secreted in multiple venues, and that you orchestrated a criminal scheme which had been running for years; that you have threatened to harm yourself, and that you could be facing life in prison. You are going to say that you came back, you are trying to right the wrongs you have done, and that you have strong ties to the community. And you need to be free to help the government restore those who have lost funds. That is noble and righteous. Thank you. But who is going to trust you now to make it right? Good luck.

It is going to be a tough call for a judge to decide what to do, and you may be facing some of your last days as a free man. Ever. You gave so much to so many and you could have done so much more but instead you have taken everything away from yourself. Sadly, something you will only come to realize at sentencing, when you are cuffed and walked down that lonely corridor to a federal prison, you are the worst victim of your own fraud. You will suffer more than anyone else. Because you have sold your freedom for some material things that don't last anyway.

The glorious breath of an ocean breeze, the sounds of laughter at a ballpark, the cool air of independence on a ski slope, your own bed, all that you have given up. For what? To sit in a fancy car? Please.

I hardly had an extensive relationship with you Scott, but do you remember our last conversation when you said you were thinking of leaving the home you had just barely moved into on Harbor Isle because Wayne Huizenga had put his up for sale; that maybe you wanted that? And I commented, 'Scott have you forgotten what it is like to just live in a dorm room in college? At the end of the nite, you put your head down on one pillow in one bed, and what else do you need outside of a roof, a partner, and maybe a dog by your side?'

You have given that all up, man. Family. Friends. Your dignity. For what, for what, a brief, foolish roller coaster ride in the sun? That same sun which bronzes also burns. And you have baked yourself but good.