Recent Broward Law Blog Features

Wednesday, April 29, 2009

Fatal Hit and Run Takes A Civil Turn With Suit


The family of one of two British businessmen killed in a Fort Lauderdale hit-and-run crash filed a lawsuit Monday against the owner of the car involved in that accident and a friend of the car's owner.

A Porsche 911 Turbo owned by Ryan LeVin, 34, struck Craig Elford, 39, and Kenneth Watkinson, 48, on Feb. 13 as they walked along State Road A1A to their hotel on Fort Lauderdale beach.Police are investigating to see who was behind the wheel at the time of the accident. Though the lawsuit filed by Elford's family does not mention who was driving the Porsche, it accuses LeVin and his friend Derek Cook, 37, who police say drove the sports car at some point that night, of reckless driving.

Complete coverage: Deadly hit-and-run kills two Britons

"These men represent the ultimate not just in negligence but in cowardice for fleeing the scene," said Seth Miles, one of the attorneys representing Elford's family. "His family is demolished. They just want to see them take some responsibility."

Among the accusations in the lawsuit are two charges the Fort Lauderdale Police Department have not verified: that both men were driving drunk and that one of them was involved in a drag race moments before the crash. Those details were gathered from witnesses, Miles said.The lawsuit seeks unspecified damages from both men.

"I'm not surprised they filed the lawsuit. That's what people do when they lose relatives," said David Bogenschutz, one of LeVin's attorneys. "But filing a lawsuit and proving a lawsuit are two different things."

LeVin is behind bars in Illinois for violating the terms of his probation for a 2006 car chase in Chicago. The British tourists are very dead, and no one has yet been formally arrested or charge, though law enforcement seems to know what happened and how and by whom. This investigation has had some tv like turns and quirks that are manifesting into a difficult prosecution. Sad for the victims. Sad for the people of the State of Florida.

From a defense perspective however, we must always remember it is the State's duty to insure that their case is proven beyond a reasonable doubt and the burden to prove what might have happened did indeed occur. Initially, everyone thought the driver was someone other than who it turned out to be. If lynch mobs were still tolerated, the wrong guy would have already been hung.

Tuesday, April 28, 2009

Please Do Not Have Sex With Your Backyard Picnic Table




Remember the famous line of Florida cases where individuals who had sex inside their first floor condos to close to the community swimming pool were charged with public indecency because they did not close the windows and neighbors could stare in and see them doing the nasty?
Remember the couple that had sex in the motel on top of the left field stands in the Toronto Blue Jays innovatively designed stadium?
Oh, and then there is all that stuff we did as kids in the back of dad's convertible.
Well, my favorite blogger John Mesirow has found a great story out of Ohio where some dude decided to do the hole in the umbrella in his backyard patio table. But his home is near a school, and some kids filmed it, shared it, and now the video is evidence, that well, could stand up in court against him, for the felony of having pubic sex in a public place.
You have heard of change of charge? Well the State may raise it from the misdemeanor of public indecency to felonious conduct because the dude did it more than once in daytime hours near a schoolyard. The guy is married and has kids, but apparently is just not getting enough. Well now maybe he will get the table over his head.
The case has been turned over to the Huron County prosecutor. That office will conduct a full investigation and present the case before a grand jury.

Specific charges will depend on whether the school was in session at the time. Maybe it was a teacher's work day or something. Unreal, huh?
http://www.wtol.com/Global/story.asp?S=8082496

Gutsy Dade Jurist Rips Flawed Defender System



In unusually harsh words, Miami-Dade Circuit Judge Betty Butchko blasted the flaws of the system that defends the indigent accused of third-degree felonies, the Miami Herald reported last week in a story by David Ovalle.
Here is that story, my comments follow.

Angered by a flood of cases and overworked lawyers in her court, a Miami judge on Friday blasted the state's system designed to defend poor people accused of crimes.

''We're not in some Third-World nation where the Constitution means nothing. In this division, the Constitution means something,'' Miami-Dade Circuit Judge Betty Butchko told lawyers Friday.

Her unusually sharp words came during a hearing to assign a new lawyer for an accused car thief whose original assistant public defender, citing a swollen caseload, announced she was unprepared for trial.

Butchko's criticism comes as an appeals court weighs whether the Miami-Dade Public Defender's Office can decline new third-degree felony cases because of its thinned ranks and underfunded budget.

''I do not have the luxury to wait. Justice is not stayed pending a ruling,'' Butchko said Friday of the ongoing appeal.

The public defender's office, with about 183 lawyers, represents poor defendants who can't afford to hire private attorneys. Last June, the office sought to decline all new noncapital felony cases.

In September, Miami-Dade Circuit Judge Stanford Blake ruled the office could refuse new third-degree felonies, a move critics say will cost taxpayers more down the road.

The Third District Court of Appeal put Blake's decision on hold while it mulls an appeal by state prosecutors. They say his ruling violates state law and Martinez hasn't proved the indigent get poor legal help.

In January, assistant public defenders began delivering notices to clients saying cases would not be prompt because of the workload.

Also this week, Martinez's office announced 47 private attorneys -- with 1,070 years combined experience -- had agreed to take over one third-degree case each from his office for no pay.

The system, right now, works like this:
An indigent defendant has their case assigned to the public defender's office. If Martinez's lawyers have a conflict -- say, a witness is also represented by the public defenders in another case -- the client is assigned to the state-funded Regional Counsel office.

If that office also has a conflict, private lawyers with state contracts are assigned to the cases.
Friday's drama revolved around Mario Escoto, 27, arrested in January for third-degree grand theft auto.

This week, as his case neared trial, his lawyer, assistant public defender Karen O'Connor, asked for more time to prepare because she was juggling too many clients.

Frustrated, Judge Butchko removed her from Escoto's case, citing ''ineffective counsel.'' She appointed a private attorney, bypassing Regional Counsel -- which the judge also called stretched thin and overburdened. The decision drew immediate criticism.

State officials refused to pay a private attorney because Regional Counsel had not been assigned the case first.

Richard Joyce, the Regional Counsel's chief assistant, blasted Butchko for unfairly assuming his office could not handle a glut of third-degree felonies cases.

He accused the judge of micromanaging his office.

Butchko finally agreed Friday afternoon to assign the case to Regional Counsel, which employs lawyer Annette Gomez to the judge's courtroom for 30 hours a week. ''I'm not micromanaging,'' Butchko said. ``I want to make sure she can handle the cases.''

HERE IS WHAT I THINK ABOUT THE WHOLE DAMN THING
First, defense attorneys, prosecutors, and judges should issue a joint proclamation that the regional office of conflict counsel has been an abject failure from the outset. It was never intended to advance the rights of defendants, but just to cut the costs of the state. No matter how well intended the lawyers who serve the office, the system was ill-conceived, poorly planned, and woefully underbudgeted. The lobbyists that spend so much time lining their pockets with county funds ought to volunteer their time to convince our dumb legislature that the mechanism we have set up is an administrative nightmare and constitutional abomination. Some groups have to effectively start saying so and loudly.
Second, private lawyers volunteering to handle the overload is noble and laudatory but simultaneously plays into the hands of legislators trying to escape their fiscal and fiduciary responsibilities to provide indigent persons counsel under some case called, oh, I don't know Gideon. Third, any half ass stop gap measures which perpetuate a newly designed system that is already doomed to failure is only surely going to perpetuate injustice, not resolve it. Public Defenders need more public funding and it has to come, pursuant to Article V of our Constitution from the State, and they collectively should sue to get it if they have to.
From the FACDL to the Bar Associations to the judges, a statewide initiative needs to slap the legislature in the face and suggest we cannot have multi county regional offices in Miami representing clients hundreds of miles away, and the system we set up was monetary in purpose, greedy in nature, and fundamentally unfair to the poor, or business as usual for the Florida legislature. At the same time, they need to say if Florida is going to keep on passing more laws to put people away, they are going to have to find funds for more lawyers to represent the accused.
It goes beyond this article above and the lawsuits about who should handle third degree felonies. No the system we had was not perfect, and the wheel did not always turn justly, and judges too often made special appointments a gravy train for their buddies, but like Slattery's People, an old TV show, once said, 'the other systems are a lot worse.' We took a bad situation and made it worse, and now we have to just crawl out of the swamp to get into the mud. But we ought to start, and unfortunately this legislative session is moving to an end with the Office of Conflict Counsel in place, and the only thing it has placed is more conflict in the courts then we ever needed.
With all the judicial review going on over who should pay for what, cases are delayed, justice is denied, victims are rendered impotent, the accused are denied effective counsel, lawyers who should be representing indigents willingly are reluctantly wasting time in court fighting about it, and the entire public is screwed over permanently.
How badly are we screwing over ourselves, our system, and our dignity? How badly do we need a statewide commission to review crimes, sentencing, judges, representation, and the entire system of justice that is so unjust? But let's have another one of the wonderful groups of lawyers that represent the Bar Associations celebrate some more judges at the Tower Club instead of holding weekly seminars exposing the flaws that cripple us daily. What a joke we have become.
Like Anatole France wrote, "The law, in its majestic equality, permits the rich as well as the poor to sleep under bridges..." Hey, how about making the judges wait on line to get in the courthouse. How about a judicial luncheon under a bridge where sexual offenders sleep? How about a public hearing held by the chief judge allowing citizens to come in and complain about courthouse parking, case delays or how when they get subpoenaed for a traffic ticket they lose a day's pay, the county pays them $6.50 for the summons, and it costs $9 an hour to park in the lot? How about asking why civil judges have 4.000 cases? Do we really need to tour the mental ward of the 9th floor in the Dade County Jail two years after lawsuits were filed to show how shoddy, shabby and shameful the conditions there are?
There is so much to be done, and this is just the legal system.

Wednesday, April 22, 2009

Supreme Court Limits Warrantless Searches of Vehicles Under Limited Circumstances


WASHINGTON -- The Supreme Court ruled that police need a warrant to search the vehicle of someone they have arrested if the person is locked up in a patrol cruiser and poses no safety threat to officers.

The court's 5-4 decision puts new limits on the ability of police to search a vehicle immediately after the arrest of a suspect.

Justice John Paul Stevens said in the majority opinion that warrantless searches still may be conducted if a car's passenger compartment is within reach of a suspect who has been removed from the vehicle or there is reason to believe evidence of a crime will be found.

"When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant," Mr. Stevens said.

Justice Samuel Alito, in dissent, complained that the decision upsets police practice that has developed since the court first authorized warrantless searches immediately following an arrest.
"There are cases in which it is unclear whether an arrestee could retrieve a weapon or evidence," Mr. Alito said.

Even more confusing, he said, is asking police to determine whether the vehicle contains evidence of a crime. "What this rule permits in a variety of situations is entirely unclear," Mr. Alito said.

The decision backs an Arizona high-court ruling in favor of Rodney Joseph Gant, who was handcuffed, seated in the back of a patrol car and under police supervision when Tucson, Ariz., police officers searched his car. They found cocaine and drug paraphernalia.

The trial court said the evidence could be used against Mr. Gant, but Arizona appeals courts overturned the convictions because the officers already had secured the scene and thus faced no threat to their safety or concern about evidence being preserved.

The state and the Bush administration complained that ruling would impose a "dangerous and unworkable test" that would complicate the daily lives of law-enforcement officers.

The justices divided in an unusual fashion. Justices Ruth Bader Ginsburg, Antonin Scalia, David Souter and Clarence Thomas joined the majority opinion. Chief Justice John Roberts and Justices Stephen Breyer and Anthony Kennedy were in dissent along with Mr. Alito.

Thanks to John Howes for the 411 on this matter. It seems to protect the rights of defendants from extended searches, but will likely cause consternation for law enforcement officers in its application, which may lead to a series of conflicting rulings. So what else is new?

Sunday, April 19, 2009

Plantation Lawyer Roshawn Banks Announces Candidacy for a Broward County Court Seat


Here pictured with State Attorney Mike Satz, Plantation lawyer Roshawn Banks, with almost 11 years experience is the first candidate for the county court seat now held by Judge Steven Shutter, expected to retire next year.

Having just done another blog on the continuing sad lack of ethnic diversity on the Broward County bench, her candidacy should be applauded and seriously scrutinized. We need a judiciary that better reflects our population. We need to stop thinking of minorities as random replacements to fill every thirtieth opening but to recognize our shortages in the past and to make up for it in the future.

Roshawn Banks, who owns The All Law Center, PA in Plantation, filed for the seat April 9.
According to the center’s website Banks founded the practice in 2005. She represents both civil and criminal clients. The website states she has had 30 trials. I hope she brings wisdom and passion to her candidacy and campaign.

Banks was the president of the T J Reddick Bar Association, where she was outspoken against the lack of diversity on the Broward bench. Good for her. She lost a race for an open seat in the state House last year to now-state Rep. Hazelle Rogers. She also teaches at Nova Southeastern Law School.

Here is a piece Broward Beat columnist and blogger Buddy Nevins did on Ms. Banks.
http://www.browardbeat.com/banks-talks-about-her-judicial-race/

I do not know enough about her to endorse her over other candidates who may choose to run. I do know enough about the lack of judicial diversity on our bench to say her candidacy and committment should be applauded and appreciated and allow for others to believe they too can successfully do the same.

The courthouse blogs are vehicles for people to espouse their candidacies, and the newly organized voices of the Bar are becoming forums and vehicles for people to see more and more candidates running for judicial office. This is all a very good thing. The mainstream media would never give it the time or recognition it deserves. Through these blogs we are learning of judicial decisions that would have been ignored, investigations that get covered up, and candidacies that would have remained dormant until the last minute.

The Nation's Most Liberal Court Challenged by Bush's Appointees


The U.S. 9th Circuit Court of Appeals has been resolving disputes for 150 years in a region once prone to settling differences with pistols. Despite today's decorum, ideological gunfights still blaze.
Anyone who has lived on the East Coast has heard about the Ninth, and their forward thinking opinions most find too radical, and higher courts find too shocking. They get reversed a lot. It is the nation's most liberal court and has for the last eight years been a target of Bush judicial appointees.
So here is a thoughtful piece from the L.A. Times that is worthy of your review and consideration. It is a vast judicial circuit with conflicting ideological issues, and has crafted scores of challenging decisions that laid new ground for bold caselaw and gutsy thinking. As I go back and forth to my small northwestern California apartment, I only wish over the past thirty years in Florida a few courts were more like these. Instead, we have made case law here by fighting oppression that never should have been. In Northern California, they look at oppression, as well, oppression, instead of the operative way. Here is the article:

Nude Dude Ranch Should Challenge County's Illegal Restrictions



So Norm, you have not blogged in a couple of days, the longest you have ever gone, friends note.

"What did you do, win the lotto," they ask.

"I only wish," I reply, because if I did, then I too could cause a national brouhaha by opening up a nude dude ranch. No, really, it is happening. And in Florida, of course. Right in Brooksville on the West Coast.

A Tim Clements and David Jennings recently opened up their 10-acre horse farm as a dude ranch and started advertising the clothing-optional facility as a bed-and-breakfast with available RV spaces. All those uses require county permission, but the owners got none. Now they’re in trouble with the neighbors and the county. Those damn things called zoning laws.

The dude opening up the dude ranch says he wanted to return to the farm life he grew up in. I can feel for him. I used to love going to dude ranches in the Catskill Mountains when I was a kid growing up in the country before the family settled in more urban environs.

These owners say the farm is secluded enough to be in the buff. And the pictures at their web site show it to be spectacular, beautiful, rural, and inviting. I have a friend from the Florida Gay Rodeo that says it is an awesom retreat. But Hernando County has a nudity ban, and these guys need some good first amendment lawyers to, hmm, brief their case. Clements says they'll try to get the necessary paperwork, but if they can't get approval he'll close the CJ Ranch again to all but friends. I don't know. I expect them to be on Letterman by next week.

Though their Web site says clothing is optional, there is a caveat: Everyone ``must wear pants and boots to ride the horses." After all, they don't want to get sued or anything. There are all sorts of liability issues for going, well, bareback.

Nude Dude Ranch Website www.cjduderanch.com

Full story from Tampa Bay http://www.tampabay.com/news/localgovernment/article993289.ece

These guys should argue a legal claim that naturists have legal rights, and a county cannot create an absolute zoning ban barring nudity anywhere and everywhere within its borders. Just as homeless populations have effectively argued in court they have standing, so to do naturists and nudists who have historically established a perfectly legitimate and respectable lifestyle. I remember when I first came to Florida and did my legal radio show, I was invited out to the Seminole Health Club in Davie to judge their annual talent contest. It was the first real legal experience I had with nudists. But then came those early years in the 1980's where we had to fight to protect the rights of naturists on Haulover Beach in Miami. This is a legitimate and legal class of decent and honorable people whose rights should be protected and preserved.

These guys should not run from the law. They should challenge it. They have a viable and lawful claim. They need to understand that if the county has passed a law rendering any nudity illegal they have a legal right to say the ban is unconstitutional and may not stand up in court.

Wednesday, April 15, 2009

Some Anecdotes on Sex Offender Registrations


Sex offenders will be at least temporarily barred from moving into a neighborhood that has become a haven amid growing living restrictions across South Florida. The county agreed to a 90 day abatement until they could create a task force for long term answers.

John Rodstrom proposed the measure, pointing out that an over concentration of sex offenders in one small community was not just scaring families, but driving property values down, inhibiting people from moving in and was just plain unfair to the community of Broadview Park.

Broadview Park is a small working class neighborhood no larger than a square mile, yet it's home to 5 percent of all sexual offenders in Broward. Under the temporary rules, sex offenders cannot move to a home within 2,500 feet of a school, day care center, park, bus stop or playground in any unincorporated area.

Broward County commissioners agreed to create a task force to look at long-term answers to issue of where sex offenders live. Commissioners Lois Wexler and Ilene Jacobs incisively pointed out that 'distance restrictions' create a false sense of security, because offenders on probation can still get in their cars and go to parks. It is not a real answer, and they were very sophisticated in their approach. They did not just parrot the popular pablum. Applause. The majority of speakers agreed, from sex offenders to sex therapists.

I spoke at the meeting because I don't want to pass laws which lead to us having people wind up sleeping under bridges like Miami. I don't think you can supervise an offender, who needs supervision, when they are living under an overpass. It is hard to have a gps hooked up to a light pole under a bridge.

Two other things come to mind. We should trust our judicial system. The offenders who are released are individuals who either finished their time, or a court and prosecutor agreed were legitimate candidates for probation. They are already inhibited by a vast body of supervisory regulations, from reporting to counseling to ankle bracelets to day monitoring to scarlet letter stamps on drivers' licenses. The penalties for sex offenders are the most severe in the state and yet you get all these studies showing that they could be your grandfather more than an unknown assailant.

So I was just thinking I would rather have state reporting requirements telling me where the known convicted crack addicts and burglars are that are living in my neighborhood. Those are the recidivists whose conduct places my property and home in jeopardy and safety in question. Those are the ones who affect not small populations but large groups and vast neighborhoods. Maybe we have done this ass backwards. Maybe instead of registering sex offenders we should have registered known burglars.

Just a thought.......................here are Michael Mayo's in the Sun Sentinel
http://www.sun-sentinel.com/news/columnists/sfl-sex-offenders-mayocol-b04190sbapr19,0,4324410.column

Anecdotes on the Passing of Dan Futch


The picture and story are courtey of the Sun Sentinel. But Futch's passing is the passing of a legend in Broward. I suppose most of the commentaries about him will come on the jaab site from those of us who have been here for 25 years or more.

He was never an easy judge, always a tough cookie, but I admired him for his damn decisiveness.

There are two stories I want to share about 'Maximum Dan' and neither had to do with those Friday afternoons all of us in the courthouse used to spend at Il Giardino's on East Las Olas.

The first had to do with one of my first days as the morning drive radio talk show host for WFTL, 1400 AM, early in 1990. My start there required me to replace one of the longest running talk show hosts in the history of Broward County, a soft spoken story telling polite gentleman known as 'Lovable John Lupton.' Instead of turning on the radio and listening to passive anecdotes, the audience was now listening to a heated political show, led by a liberal, aka, me.

I remember I was talking to bondsman Wayne Spath in Judge Arthur Franza's courtroom, and Russell Williams, who was then working for me, just starting out, came to get me. 'Damn, Norm, you better get to Futch; he is screaming about you.'

'Okay, but why, I don't even have a case there...."

So I go to his courtroom and he sees me and stops the proceedings, "You are one son of a bitch, you know that?," he says. And smiles!.

"What did I do," I ask?

"What did you do?", He cries: " For thirty years my wife and I have been waking up to 'Lovable John Lupton' on WFTL and now this morning I turn on the radio, and our favorite host is gone, and you are invading my private bedroom space with your radical commie crap. Get out of my house. Get out of my courtroom!"

There is another story about how I filed an emergency injunction request for an adult bookstore on a Friday morning, and he called me up personally to say, "you know Norm I can hear this right away and deny it this afternoon, and you can take it up right away, but if you want to give your clients some time to think they paid you for something we can wait till next week and I can deny it then...."

But boy, he could be brutal. Show up late and you go to jail. Show up in shorts and you are thrown out of his courtroom. Say you are ready for trial, and just to make sure you don't flee, or get running feet, he would take you into custody.

Now that I think about it here are two more Futch anecdotes. Some kid shows up plastered for sentencing, and Futch says to him, "you just came into my courtroom drunk, didnt you?"

"Yes, judge, I heard you were a real bad ass, and were going to sentence me for a long time, so I figured I would just tie one on last nite."

"Young man, I admire your honesty, so I am going to sentence you to only 30 days- for contempt of court. Come back in a month, and then I will give you your real sentence, and I promise you I won't disappoint."

Of course I remember winning a motion to suppress with him when the young man who was caught with coke outside the Playpen turned to the judge and said, "Your honor I did not leave the coke on the dashboard or on the console like the cop said. Man I knew it was illegal, I knew if I got caught I was going to jail. Yes, I had the dope. I hid it. Hid it under the carpet, under the asbestos flooring, under the front seat, even covered that up. The cop pulled me out of the car, ripped it up and found it . It was not in plain view. I did everything I could to hide and conceal it cause I did not want to get caught."

"So young man you are admitting openly to me that you had the cocaine and were using it."

"Yes sir, judge, I am not going to lie to you. I was."

"Well you know son your honesty is so refreshing, and coming clean and admitting you hid it and owned up to it, and went to so much trouble to conceal it, and you not giving me a sob story of how you lost your job or your father beat you, I am going to find you are telling the truth and that the cop lied. The evidence is thrown out. It's an illegal search. But son you still are going to have to do about 30 more days. We will let you out next month."

http://www.sun-sentinel.com/news/local/breakingnews/sfl-judge-dan-futch-dies-bn041309,0,6498485.story

Sunday, April 12, 2009

It's Time for Defense Attorneys to Challenge Forensic Reports In Every Case


The series of articles the Broward Law Blog has done on the decompensating authority of past forensic analysis is summarized in these blogs:

An article in the weekend NY Times exposes flaws in Alabama so severe that "Alabama authorities plan to review as many as 100 forensic cases by a medical examiner whose botched autopsy of a baby led a judge to throw out a murder charge against the mother."
The handwriting is on the wall. We have been so reliant on this technology that we have not questioned it thoroughly, challenged it effectively, or overturned it successfully. We have buffaloed and bulldozed by guys in white suits wearing the title of experts and accepting foolishly their representations to courts and jurists.
And now study after study is showing just how supplicant we have been and how wrong they are. If I ran a public defender's office, or managed a state attorney, I would ask them to join together to form an 'Innocence Project' and scrutinize jointly all these outside forensic experts they have been contracting with for years, and demand review and further analysis on all those cases where the purported accuracy of forensics was cause for a verdict. Let's do what is just for anyone and and not just what is expedient for everyone.

Saturday, April 11, 2009

Prosecutors Pay the Piper for Professional Misconduct in Miami Trial of Pill Doctor


Calling the actions of prosecutors "profoundly disturbing," a federal judge in Miami has ordered the U.S. government to pay sanctions topping $600,000 in the case of a South Florida physician charged with illegally prescribing painkillers.

U.S. District Judge Alan Gold is forcing the government to pay Dr. Ali Shaygan more than half the costs he incurred to defend himself at trial as punishment for secretly recording his defense team.

In a harshly-worded 50-page order, Gold said the "win-at-any-cost behavior" of federal prosecutors Sean Cronin and Andrea Hoffman raised "troubling issues about the integrity of those who wield enormous power over the people they prosecute."

Here is the story from the Herald:

Here is an anecdote for you. Bob Norman of New Times blogs that Gold is a 'knucklehead' for doing this. Ironically, if he were a lawyer, the Florida Bar would use a knuckle on his head for saying that. But we disagree anyway. Sure, the money is coming out of taxpayer's pockets. That is just one of the messages you have to send to the government for abusing their office. It is only a start though.

One of the things you have to ask yourself if you have been doing this a while is how many times has this gone on, unheeded, unchecked, undiscovered? Does anyone out there think this is the first time this has happened? How many people are in jail after convictions and serving time where if misconduct had been exposed, they might not be there?

I don't think you can start a new 'Innocence Project' for Brady violations (for discovery). But we can ask supervisors to initiate a review process; ask judges to ask their law clerks to scrutinize recent similar motions in comparable cases. May turn up something today that will free someone tomorrow.

Wednesday, April 8, 2009

President Obama's Legal Team Wants to Expand Wiretapping?


The Raw Story is reporting today that the Obamarama Administration is doing a legal dance in court to expand the rights of the government to wiretap. Are you listening, John Howes?

In a legal filing on Friday, Obama lawyers claimed the government is shielded from lawsuits by a 'sovereign immunity' clause in the Patriot Act.

http://www.alternet.org/rights/135605/obama_administration_quietly_expands_bush%27s_legal_defense_of_warrantless_wire_tapping/

For the first time, the Obama Administration's brief contends that government agencies cannot be sued for wiretapping American citizens even if there was intentional violation of U.S. law. They maintain that the government can only be sued if the wiretaps involve "willful disclosure" -- a higher legal bar.

Will have to look into this later. Not very impressive though. What was impressive was the holding by the 4th DCA rejecting the State Attorney's appeal in State vs. Martinez. Congrats to the legal team from the BACDL, including John Howes, who fought the winning battle.

Still Swinging for Justice At Age 79


Just a few more words about retired Supreme Court Justice Sandra Day O'Connor, from Arizona. After decades on the High Court, having served her country and her career in law, she is entitled to lay back, relax, and retire, catch a few games in Arizona.

But here she is at the age of 79, going strong and touring the country to promote a Web-based civics instruction program called Our Courts, found at http://ourcourts.org.

''Today, civics, government and indeed American history are being pushed out of the classroom, and the results are as dismal as they are unsurprising,'' O'Connor said, adding that nearly half the states no longer require civics and American history. She said surveys show that three-quarters of Americans cannot distinguish between a judge and a legislator.

She came to Florida this week and cajoled Tallahassee legislators. But they may not be listening. There is a civics bill pending, but it is stalled in the House, the Herald reported today. Bummer.

Committee chairwoman Rep. Anitere Flores of Miami said there was concern about fiscal implications -- few new spending measures are being approved in the tight budget year .

''Listening to Justice O'Connor's message today, we know the importance of civics,'' Flores said. So do something about it other than talk.

O'Connor was nominated to the Supreme Court in 1981 by President Ronald Reagan and became the first woman justice. She addressed our state legislature for 13 minutes. ``We have a long way to go to rejuvenate our nation's commitment to building good citizens. But it does start with you, our nation's legislators. And I'm confident that you're going to continue to give this subject the attention it deserves.''
Well she is more confident than I am. Our kids have been underfunded and undercared for by our legislature for decades.

Judge Bernie Bober Makes His Mark




I have tried to use this blog for legal commentary, not for marketing my law office. I don’t take advertising. I just lend to these pages reflections on my experiences as a lawyer in Florida, sworn into the Bar thirty years ago next Wednesday.. Today though, I am going to talk about one of my own cases. But the story is more about my client and his judge then it is about me.

Carving out a judicial identity is no easy task. However, what I saw Judge Bernie Bober do in court on Tuesday merits recognition and comment.

It was a tough case that he inherited from another judge who had been transferred in January to the civil bench. The defendant had a small marijuana grow house in his back yard. But the defendant was not some young kid running a dope operation to sell weed. He was a medical caregiver, tending to plants while providing for his domestic partner who was living with HIV. They were both in their 40’s, came to America as our grandparents did, immigrants from another country. They worked hard, went to school, and graduated into their own businesses. They had strong friends, a good family, and ties to the community, socially and professionally. They owned their own home, paid their own taxes, and took care of each other; played together in local softball and bowling leagues.

“I did not want to grow pot,” the defendant said, “but I did not want to go out in the street and buy it illegally, get mugged or wind up with my partner smoking oregano or rat poison. I just wanted to provide him medicine, give him the same pot that is allowed in fourteen other states.” He apologized to the court for doing what he did, explaining his hands were tied; that he sought not to commit an injustice but rather remedy one.


Still, the defendant was their facing a charge of manufacturing cannabis as a result of a statewide sting last year called “Operation D Day,” a secretive law enforcement initiative that targeted over 135 grow houses statewide, where some defendants were found with guns, thousands of dollars, and hundreds and hundreds of plants. My client had 4.

The motion to suppress was heard by the previous jurist who did not summarily deny it. She analyzed the ‘knock and talk’ techniques conducted by law enforcement and determined it was ‘legitimate’ and the search was ‘consensual.’ We thought not, and were determined to appeal. We refused a state’s plea offer we determined was retaliatory, though not vindictive- excessive drug offender probation, fines, and community service. We pled open to the court, and reserved our right to an appeal; a close decision we think the prior jurist decided incorrectly- coming down on the side of the state and the detectives, instead of Miranda and our clients.

I laid out the essence of a medical necessity offense, pointing out my client’s situation, as a caregiver was not unlike that which had been litigated in many jurisdictions. I even pointed out that as a dual resident of California and Florida, I owned a medical marijuana identification card which enabled me, if I so chose, to grow in my garden in San Francisco as much medicine as my client cultivated in his backyard in Wilton Manors. I talked about my client’s standing in life and how much he had achieved; how far he had gone. We had almost thirty minutes to make our case. I had no clue what the sentence would be, only that it would be lesser than the sanctions offered by the state.

“Withheld and $100 court costs” on both counts came the words from the bench, when our presentation was concluded. My client was floored. I was awed. No unnecessary and foolish state sanctioned probation with reporting and restrictions and inhibitions which diminished his stature and standing as a human being and businessman who had gone through so many roads in life successfully. A jurist who crafted out a fair resolution, which was tailored to the circumstances and not bound by past precedent. One who was defining his identity as a courageous jurist willing to act on his own.

I hardly want to suggest Judge Bober was lenient. Judge Bober was just. He was a rubber stamp for no one. Instead, he was putting a stamp of professionalism and independence in his courtroom.

Earlier that morning, wading through his lengthy docket, I saw him unhesitatingly send a recidivist single mom of four to a year and a day for a second violation of probation which involved engaging in the same criminally offensive conduct that placed her on probation the first time. Placed her in jail, uncomfortably, even with the kids crying in the courtroom. I saw him take a man who was charged with fleeing and eluding and possession with aggravating circumstances, which jeopardized the public safety and put him in jail for a year as well. I also saw a young drug offender get a second chance at a sober house. Saw him reduce a bond for a housewife surprisingly charged with ‘trafficking in Oxycodone, because of the number of pills she had, from $100,000 to $10,000 when over a dozen members of her family stood up to testfy for her. It’s no easy task to wake up each day and have to craft decisions that impact the lives of so many people so quickly so swiftly. Not when your docket is overloaded and the crimes are too many.

But on the date of April 7, 2009, I witnessed why an individual with 25 years of experience as a public defender and lawyer, who had tried everything from simple misdemeanors to complicated murders was able to rise to the task successfully, affording in his courtroom patience and professionalism, and an opportunity to be heard. It had to be a long and exhausting morning for a new judge on the bench only a few months. But I witnessed why Judge Bernie Bober will lend character and dignity to that seat for many years.

Tuesday, April 7, 2009

Governor Selects Ed Merrigan for Zack's seat


Have no clue who the new jurist is, one Edward Harold Merrigan, Junior of Sunrise, but I heard he had some pull as Jack Seiler's brother in law. That may be so and it may have been an in, but it does not render him unqualified. He may bring a great skill set to the bench. And we should not censor him for seeking an office he was entitled to apply for. Likely to serve in the north satellite.

Still, Merrigan is not a minority, a hispanic, a woman, a Cuban American, a Haitian American or one of the eminently qualified other final candidates who could have been so appointed to the bench. No, there should not be affirmative action. And you can't have a race in one year to catch up to the injustices of the past thirty. There just should be, however, a consistent attempt to fill the bench with diversity, and it does not end with the appointment of Judge Gillespie to replace Judge Dijols.

It ends when the Bench and the Bar administration better reflects the population of our community. And we still have a long way to go. The numbers remain embarrassing and hardly reflective of South Florida's multiple ethnicities or diverse populations.
The governor's appointment of Ed Merrigan, after the judicial screening process and the JNC did its task, may have been the most prudent. Time will tell. It would be equally prudent to continue to encourage more minorities in this very diverse county to reach for the gavel as a career as well. History has told us that.

Judge Aleman Gets Reprimanded on the 'Net


Working in court and on cases all day, about the best I can do is publish the Governor's press release on the new judicial appointments, and this article from Tonya Alanyez in the Sun Sentinel about Judge Aleman's reprimand.

The public was able to watch the reprimand of Broward Circuit Judge Cheryl Aleman for misconduct by the Florida Supreme Court on Tuesday. Unprecedented. Here she is pictured in a Sun Sentinel photograph from 2006.

Here is the Sentinel report:

Broward Circuit Judge Cheryl Alemán stood before Florida's seven Supreme Court justices this morning, termed an "errant" judge in need of a public reprimand for her misconduct on the bench.

"This is a sad day for you, the state of Florida and the entire judiciary," said Chief Justice Peggy Quince. "At the most fundamental level, you have damaged the public's trust and confidence."Alemán had failed to uphold a judge's highest calling of maintaining fairness, courteousness and impartiality, Quince said.

The seven-minute scolding began at 9 a.m. and was aired live on the Internet. Alemán, 50, stood at the podium in the austere courtroom dressed in black, topped by a red jacket. A large cross pendant hung from her neck.

Related links
Transcript of Judge Aleman's reprimand (PDF)

Other than "good morning," Alemán's only words came at the end: "God bless you and the court.

http://www.sun-sentinel.com/news/local/broward/sfl-cheryl-aleman-reprimand-bn040609,0,5394791.story

Over the years, Judge Aleman, from Jacksonville, who had served in the Attorney Generals' office, stirred controversy as a harsh and demanding jurist in criminal court. Faced with the misconduct charges, she brought in David Bogenshutz to represent her. And her notoriety brought her opposition when her term ended. She had to fight to win re-election to the bench in Broward, but she did. Now serves on the civil bench.

Judge Gerber and Spencer Levine Selected by Gov to 4th DCA Posts

Spencer Levine

Governor Charlie Crist today announced the appointment of Circuit Court Judge Jonathan Gerber of Hollywood and Spencer Levine of Fort Lauderdale to the Fourth District Court of Appeal.

“Judge Gerber’s civil and criminal court experience have prepared him well to serve on the appellate court,” Governor Crist said. “His commitment to public service, along with his strong work ethic, will serve the people of the Fourth District well."

Judge Gerber, 40, has served on the 15th Judicial Circuit since 2004. Previously, he served on the Palm Beach County Court from 2002 to 2004. He practiced with Shutts and Bowen, and with Cadwalader, Wickersham and Taft. He earned a bachelor’s degree from Princeton University and graduated from the University of Florida College of Law.

“Spencer brings to the bench a unique perspective from his diverse experience, including investigating Medicaid fraud, reviewing legal matters for a local law enforcement agency, and practicing as both a private attorney and a prosecutor,” Governor Crist said. “His broad knowledge of civil, regulatory, administrative and criminal law will be especially important to the court.”

Levine, 48, is the senior vice president and chief operating officer of Broward Health, where he previously held the position of senior vice president and chief compliance and ethics officer and chief administrative officer. From 2002 to 2006, he served in the Office of the Attorney General in the Florida Medicaid Fraud Unit, rising from senior chief assistant attorney general to director of the unit in 2003.

Previously, he practiced with Adorno and Zeder, in the Office of the Guardian ad Litem, as general counsel with the Palm Beach County Sheriff’s Office, as assistant state attorney with the 15th Judicial Circuit, and with Entin, Schwartz et al and as a sole practitioner. He earned a bachelor’s degree from New York University College of Arts and Sciences and graduated from the University of Miami School of Law. He is married to Judith Levine, counsel for the Broward Sheriff's Office.

Gerber and Levine will fill the vacancies created by the retirement of Judge Larry Klein and the elevation of Justice Jorge Labarga to the Florida Supreme Court.

Julie Kay Does Special Herald Feature on Lawyer Layoffs


By JULIE KAY
Special to The Miami Herald


How bad is the law business right now? So bad that Hollywood attorney Fred Hochszstein had to lay off his own wife.


Emily Harrison-Jolly, who practiced in Hochszstein's small downtown Hollywood office, specializes in real estate -- an area of the law that is practically dead these days.


So Hochszstein is now a solo practitioner, trying his best to pay the bills by doing what few wills and estates come through his door -- and spending a lot of time on volunteer work for his temple, where he sits on the board of directors, while also looking for teaching gigs.


''I've never seen it this bad,'' said Hochszstein, whose other specialty -- legal review of car dealer ads -- is now nonexistent. ``I'm just trying to ride it out until things improve. But my wife is pretty frustrated.''


Like most sectors of the economy, law firms have been hit by the economic downturn, and the pain is being felt differently depending on the size and specialty of the firm.


The hardest hit firms seem to be the smallest, the solo practitioners with only one specialty and a dwindling clientele -- and the very largest, the mega-firms with large overhead, fancy offices and lots of expensive associates.


The litigation boutiques -- mid-size or smaller firms with a few, recession-proof specialties and little overhead -- appear best positioned to not only ride out the storm but capitalize on it. Specialties weathering current conditions well, experts say, are insurance defense, labor and employment, plus personal injury cases.


''Before this is all said and done, law firms are going to learn a painful lesson, which is diversification,'' said Joe Ankus, a legal headhunter with Ankus Consulting in Weston. ``The boutiques who specialize in corporate and real estate work and didn't save for a rainy day, they're feeling pain. There is no question there are going to be more firm failures, attorney layoffs and a trend toward marketplace destruction.''


By capitalizing on corporate merger and acquisition activity, booming real estate and robust healthcare, labor and employment and litigation practices, South Florida lawyers and law firms rode high in the last decade. Law firms paid up to $160,000 a year for top first-year associates. Legal recruiters worked overtime placing clients.


Out-of-town firms scrambled to open up offices in South Florida, seen as the gateway to Latin America. Firms like Chicago's Arnstein & Lehr, Ohio's Roetzel & Andres, Orlando's GrayRobinson and even Los Angeles' Johnnie Cochran (the now-deceased lawyer of O.J. Simpson fame) opened South Florida outposts in the last five years.


Then the recession hit, and work slowed. Firms began shedding attorneys in earnest in the last few months, firms like Holland & Knight, White & Case, Epstein Becker & Green and Edwards Angell Palmer & Dodge.


According to the federal Bureau of Labor Statistics, the legal sector lost 4,200 jobs in February and 1,300 in January. As of March 6, there have been more than 7,241 layoffs (3,045 lawyers and 4,196 staff) since Jan. 1, 2008, according to the website Layoff Tracker.


Additionally, firms have told already-hired summer associates -- the traditional training ground for law students -- to stay home.


HOLLAND & KNIGHT
One of the largest law firms in South Florida, the 1,150-lawyer Holland & Knight, had its first round of layoffs in May 2008 and its second round last month. The cuts, which eliminated 70 lawyers and 243 staffers, came on the heels of the National Law Journal's reporting that the firm was among only three of its top 100 to see a drop in revenue in 2008.


I would like to add my two cents, which is about all I hear that anyone is earning lately. Business is real bad, especially for the smaller firms who work with individuals that still need counsel, advice and legal work but cannot access credit cards or credit lines to pay for those services anymore. So it is not that the work load is down. It is that the access to capital has dried up. And until it gets better this economy is going to deteriorate and hurt more and more good people.

Monday, April 6, 2009

DUI On a Motorized Bar Stool Not an April Fool's Joke


A motorized barstool! This beats the story about the guy getting a DUI on a lawnmower last year. Or that Florida law which allows you to get a DUI on a bicycle.

Think about it. A motorized bar stool. Fly it to the moon.

Brilliant! The proud owner, Kile Wygle, said it can go 38 mph!

Luckily for him, he was "only" going 20 mph when he crashed. He did not get a ticket for speeding.

Unluckily, he was busted for "driving" under the influence (and with a suspended license!). And, as reported by News Talk 610 WTVN:

Wygle was treated for minor injuries at Licking Memorial Hospital where he joked with Trotter about drinking 15 beers before the crash. He refused the blood-alcohol test.


Ohio law prohibits anyone from operating a motorized vehicle while under the influence of drugs or alcohol. The law excludes wheelchairs and mobility scooters. To the slammer he went, American ingenuity notwithstanding. Probably be in the Hard Rock or on E Bay next week. Will help pay for the guy's lawyer.

Fantasy Land for Ex Governor Blag Oy Vey O Vich


Gray Parrot to Choose its Owner?


BOCA RATON, Fla. -- An African Gray parrot is being summoned to court in South Florida.

The bird is at the center of a dispute between two owners.

Angela Colicheski, 52, named the bird Tequila when she bought him 13 years ago. The bird flew away three years ago and ended up in the home of Sarita Lytell. She named the bird Lucky.

The two women met by chance at a Dunkin' Donuts and discovered their love for feathered friends. When Colicheski realized the other woman had her bird, she asked for it back.

Lytell says she looked for the bird's owner when she found it, but after three years is now too attached.

Colicheski filed a lawsuit in February.

The judge ordered the bird in court Monday.
Somehow I do not think the judge can rule: "Finder's Keepers". That may work as a kid or in fantasy baseball, but not in real life as an adult. Under the law, you just do not automatically acquire good title to stolen property, or missing property, do you?
This reminds me of a real old Lassie episode........................What do you think ?
Anyway, it's Opening Day, I have had a blog free Sunday, and maybe in a trial today. I can't think of anything to ruin the start of the baseball season more. :-)

Saturday, April 4, 2009

Taser Abuse Has to Stop!



A Parkland man who was Tasered on Tuesday during a scuffle with Broward sheriff's deputies in front of the Sawgrass Infiniti car dealership in Tamarac has died in the hospital, according to authorities.

The man, identified as John J. Meier Jr., 48, had been running in and out of traffic on West Commercial Boulevard while wearing only a pair of shorts. He was violently resisting arrest when he was Tasered, according to BSO spokesman Jim Leljedal. Well, let's think this over. Can we assume that a guy running in and out of traffic in his underwear has a screw or two loose?

Meier, who authorities suspected was under the influence of drugs or alcohol, died in the hospital about five or six hours later, Leljedal said. Deputies first encountered Meier about 7:30 p.m. Tuesday after he began undressing and running through traffic in the 10500 block of West Commercial Boulevard. The first deputy to arrive tried to lead Meier away from the road, but he began fighting the deputy and continued to struggle when two backup deputies arrived, Leljedal said.

During the struggle, one of the deputies drew a Taser and pressed it directly to Meier's body, taking him to the ground, where he was handcuffed. Leljedal could not say how many times Meier was Tasered or how long he was hit with the stun gun.

Paramedics took him to University Hospital, where he was treated for several hours before being pronounced dead at 1 a.m. Wednesday.

..An Amnesty International report released last December listed Broward County as one of the counties in the country where the most Taser-related deaths had occurred between 2001 and 2008. One of the things that is so very clear to me as one who has debated this frequently on the radio and read about too many fatal instances, is that Tasers must not be used by law enforcement agents against any persons who appear to be in their 30's or older.

Verdict in Explosives Case Makes Me Think of Pot Laws




An Egyptian student was found not guilty on charges of carrying explosives that prosecutors said could have been used to build a dangerous rocket.

Prosecutors said deputies found PVC pipes, fuses and other materials that could have been combined with gasoline to build a destructive device when the former University of South Florida student, Youssef Samir Megahed, and a friend were pulled over on a South Carolina highway in 2007.

The lawyer for Mr. Megahed argued that the items were no more harmful than a road flare and that his friend, Ahmed Mohamed, put the items in the car trunk without Mr. Megahed’s knowledge. They were doing sparklers for a July 4th fireworks show, I suppose. But I digress.

The case, filled with terrorist overtones, came nearly four months after Mr. Mohamed was sentenced to 15 years in prison for making a YouTube video showing would-be terrorists how to turn a remote-control toy into a bomb detonator.

Here is a guy who had nothing to lose going to trial. But you gotta wonder how a guy gets 15 years under federal law for making a video showing how to turn a remote control into a bomb but gets thirty for growing too much weed in his backyard.

Ex Gov Goes to Fantasyland

Whose conduct is more inappropriate and intrusive here? A reporter from Channel 2 in Chicago accosts former Governor Rod Blagoyevich at a Disney World resort while he is sitting with his wife, daughters, and friends.

The former governor's wife intervenes and then a friend and the gov does zilch. Nada. I would feel sorry for him but he has hardly shirked from the limelight, has he? Leno. The View. Larry King. Regis. Why not Mickey Mouse?

Maybe it is right he is Disneyland. Fantasyworld.

Friday, April 3, 2009

Editorial Cartoon of the Day


Nick Anderson of the Houston Chronicle is an avowed independent who covers politics and contemporary cultural issues in a way that connects with readers. His loose, idiosyncratic style carries with it an unconventional message that has broad appeal. "I approach my work with a healthy skepticism for the ideological extremists littering our political landscape," explains Anderson.
This cartoon says it all about what unjustly happened to Senator Stevens. How wrong. How sad.

DUI Deputy Resigns Over Battery Charges


The mystery of Deputy Grady has been cleared up. For months, the State Attorney has only been disclosing that there was a 'problem' with his testimony; that he has been suspended. Called to testify in cases under a Brady notice, he would say 'I only know I am suspended. I do not know why.' Now we all know.

In yesterday's Herald and the Sentinel, the revealing reports that 'A Broward sheriff's deputy has resigned after being charged with two counts of misdemeanor battery, and prosecutors said they are reviewing hundreds of cases in which he was involved.'

The charges were filed on Monday against Deputy Charles E. Grady, 39, who has been with BSO for nearly 12 years. Arraignment is scheduled for May 13. On Wednesday, Grady resigned, according to a statement from the Broward Sheriff's Office.

Court documents say that Grady touched or struck two different women on two different occasions, on Sept. 19 and Dec. 19. Both incidents are alleged to have happened as part of traffic stops, according to BSO. It opens the door to closing hundreds of his arrests. When the misconduct and wrong of the cop is greater than the injustice of the defendant, then the case is lost.

Ron Ishoy, spokesman for the state attorney's office, said a preliminary count showed Grady was involved in more than 200 cases. The office estimates that dozens of cases in which Grady was involved have already been changed or dropped.

''Since we were first notified of his suspension and then the criminal investigation against him, we have been reviewing each of those cases to determine their strengths and weaknesses with or without his testimony,'' Ishoy said in a statement. The Broward Sheriff's Office also is conducting an internal affairs investigation.

On first note, it seems to me that both the Broward Sheriff's Office AND the Broward County State Attorney's office is handling this properly, investigating it thoroughly, and insuring that justice is meted out to innocent victims and wrongful couriers. Just one story in the naked city. Reminds me of that Margate cop who jumped into the back of a car with some girl for sex in exchange for blowing off a DUI arrest. The moral is listen to your client. Sometimes these things really happen. Sometimes more times than we would like to know.

Federal Judgeship Appointment Lining Up for President Obama in Miami/Fort Lauderdale


A federal judgeship is opening in Florida, according to a story earlier this week by John Pacenti in the DBR

" Even before a call for official applications, some prominent names are swirling in the Miami legal community to replace U.S. District Judge Daniel T.K. Hurley, who took senior status.  Federal Public Defender Kathleen Williams and Miami-Dade Circuit Judge Robert Scola are expected to apply. But the seat is for Fort Lauderdale..

Sources say three other Miami-Dade judges — Kevin Emas, Mary Barzee Flores and Darrin Gayles — also plan to throw their hats into the ring.  Flores spent more than a decade as an assistant public defender before taking the bench in 2003. Emas was on the short list for the Florida Supreme Court twice last year. 

Attorneys Michael Hanzman, a name partner with Hanzman Gilbert in Coral Gables, and Judith Korchin, a Holland & Knight partner in Miami, also are expected to be in the mix when the Federal Judicial Nominating Commission seeks applications. A notice is expected any day. 

So far, the lawyers who are said to be interested in applying are exclusively from the Miami area even though Hurley sits in West Palm Beach. The Southern District has recommended to the administrative office of the 11th U.S. Circuit that the new judge be assigned to Fort Lauderdale, according to the office of Chief U.S. District Judge Federico Moreno.

Thursday, April 2, 2009

A Great Columnist Loses His Job in Sentinel Cutbacks


I don't get too blog around the clock all day. I might enjoy it. I love writing. But I have to earn a living. Lots of my colleagues in the news media are finding it harder to survive as the cutback crunch steals away jobs of fine journalists, great writers, and individuals, who by shedding light on others, illuminate our community.
One of those standard bearers, pictured above, lost his job this past week at the Sun-Sentinel. In the tradition of Ray Reechi, Gary Stein, Mike Mayo, and others, Ralph De La Cruz was, and still is, a fine, fine columnist, lending credence and outreach to the newspaper. His thoughtful perspectives graced the pages of his paper for over eight years. That voice is now lost, yet another cost cutting measure to the local media, collapsing around us.
No one has done a better job covering the buyouts, the layoffs, and the demise of the daily media better than New Times columnist Bob Norman, whose daily blog pieces capture corruption in the courthouse and despotism in the Broward air. It is impossible to keep up with his pace. But he caught up with Ralph this week and published on New Times the words Ralph never got to air in the Sentinel.
I know people are going to say, hey isn't that the guy who has taken some shots at you? The answer is yes, so what? We are not all paid to agree with each other on every turn and at every step, and if you are in the public eye, you have to hold your own and take your hits. I have a blog of my own. If I felt a need to answer, I would.
Here is the final column of Ralph, thanks to Mr. Norman, at his blog site, The Daily Pulp:

I find it embarrassing that we do such a poor job of providing such information to our readers - who ultimately are newspapers' real stake-holders.

And thanks for providing a forum to have these honest, sometimes brutal, online conversations.

At the risk of sounding as if I'm channeling Lee Abrams, I have to point out how ironic, or perhaps how adaptive, it is that we are dealing with all this trauma and grief through the same medium that has hastened the ruin of our industry.

Don't know what that means, but just felt compelled to make the observation.

Second, want to thank everyone who has expressed support for me or outrage about my job loss. Herald and Fraud, I am speechless. Thank you. But you must not have spoken much to Maria or the kids.

In the past two-and-a-half days, I have certainly had moments of depression and mourning - for my paycheck, my column, and also for my industry. But for the most part, I am optimistic and enthusiastic about my chances....

The only regret I have, only bitterness I carry, is not having the chance to say goodbye to my readers. THAT hurts more than I can say.

For me, the Sun-Sentinel was a wonderful ride. And I'm not going to bury the joy of those seven-and-half years to wallow in the self-pity of the last day.

Now it's time to interact and affect the world in other ways, with other people. And I'm pumped about the possibilities.

It's been a distinct pleasure, y'all.

Classic Ralph there, right down to the mention of Maria. I could have gotten worked up about the Sentinel not giving De La Cruz a farewell column, but they shipped him to Palm Beach where the readers barely got to know him. Almost like it was planned. Nah, couldn't be. So his last words in the newspaper were "Knock me over and pull my finger." Something beautiful about that. The big secret about De La Cruz: He's got real journalistic chops.

-- I'm going to start really keeping track of the silly drivel that the Sentinel puts up as the lead story on its website. I'm not saying the Sentinel shouldn't link this stuff; I'm saying that leading the homepage with it is not only incredibly low-rent and insulting to readers, but irresponsible. Remember, the lead story is one the newspaper is saying is the most important thing they have to share with readers at that moment. And when it's
Miss Cleo or "Is She Brain Dead?" then everybody loses. On Saturday, the lead headline for much of the day was: "ShamWow guy accused of fight with prostitute." It led to a paragraph with a link to a story on The Smoking Gun. And you could feel your IQ and the IQ of entire Sentinel readership slip further down the slope as you looked at it.

-- Finally, as an aside, the next time you're doing illegal drugs at a party and anyone
pulls out a camera and starts taking pictures or video, tackle that person and break whatever photographic device they're using. Yeah, I'm going to go ahead and espouse violence and property destruction on this one. Michael Phelps would tell you the same thing (as long as their were no cameras around).
Thanks Ralph for being a beeper and beacon for the community's conscience.

Judge Tobin, Judge Farina Address Court Funding Issue

The Herald today does an important feature on how Governor Crist will work to insure court funding, we hope. It seems you should read this before getting to the statement by Judge Tobin.

Statements by Judges Address Court Funding Crisis
I am writing to explain why I, on behalf of the Seventeenth Judicial Circuit, have pledged to support HB1121 and SB2108. Both Bills attempt to accomplish two things:

First, to place Court operating functions presently performed by the Clerk under the control of Court Administration.

It is fact that this would require personnel to move from the Clerks' payroll to the State payroll. In July 2004, that is what happened to all Court Administration employees, they moved onto the payroll of the State. There was a lot of work to accomplish this mission to be sure, but there was no panic, no wholesale termination of employees. It is unfair to portray this as anything other than the transfer by law of employees from one payroll to another. Panic should not be the order of the day.

Second, both Bills attempt to effectuate transparency in what happens to the filing fees, court costs, fines, etc. presently collected by the Clerks. The Bills would give the legislature oversight over the money resulting in the Clerks going though the same budgetary process the Courts presently use to obtain approval of budgets. The Clerks' offices set their own budgets without legislative oversight.

It's as if a fourth branch of government was created by statute in July 2004 that reports to themselves on budget issues, it's called the Florida Court Clerks Association.

They have hired the best, most expensive, and as many lobbyists as they want with your money to fight against HB1121 and SB2108. It would be interesting to find out how much of the funds the Court raised are being spend on lobbyists to oppose Bills the Courts favor. Only in America should be the slogan of the day.

Legislative oversight is key to the checks and balances in our government. Everyone should be treated equally under the law, this is a basic premise. While the Courts, State Attorneys, Public Defenders, Attorney General, Governor's Office, Highway Patrol, Department of Children and Family Services, and services provided to the poor and needy, etc. were laboring under the extreme pressure of budget cuts, the Clerks were hiring and giving bonuses. They did so legally with the very money the Courts raise with filing fees, court costs, and fines etc. The Clerks simply collect the money, but it is the Courts that raise the money and it is very profitable, but the Courts see very little of the funds. This must change.

We must have a permanent sustainable funding source created and overseen by the legislature. The Courts handle the same workload as the Clerks in a different form. Workloads increased for both the Clerks and the Courts. The personnel in the Courts labored without raises and some were furloughed while others were lost through attrition. On the other hand, Clerks hired and gave bonuses. Perhaps no one had to be furloughed; maybe everyone could have received bonuses. We don't know because the legislature isn't privy to the exact amount of money that is being collected or doled out by the Clerks or if it is being done in the most efficient way. I urge you to contact your legislators and tell them we want good government that is open and fair to all.

My office will supply a list of legislators to you on Monday.


Vic Tobin Chief Judge-Seventeenth Judicial Circuit


Now by Judge Farina:
Court Funding: Fact vs. Fiction


Open Letter to Courthouse Staff and Members of the Pubic March 20, 2009

The purpose of this open letter is to clarify misconceptions being circulated by opponents of SB 2108 and HB 1121 - two bills that deal with court funding and are now before the state legislature.

FICTION : These bills are a "money grab" by the courts and would take all fines, fees, and court costs collected by the clerks and redirect them to the courts.

FACT : All court-related revenues, which are assessed by judges, paid by the public and merely collected by the clerks, would be directed to legislative budget committees, and thereafter appropriated to state trust funds, under the control of the legislature, to be distributed to entities within the justice system, including the courts, the state attorneys, and the public defenders.

FACT : Currently, all revenues collected by the clerks are kept by the clerks to fund their budgets, which are managed internally by the clerks, without any direction or control by the legislature. Any excess funds not needed by the clerks are then returned to the state's general revenue fund. The clerks are the only state-funded entity permitted to manage public dollars without legislative oversight.

FACT : While all other entities receiving state funds - including public schools, police departments and social service agencies serving the state's most vulnerable citizens - have been forced to lay off employees and cut back on critical public services, the clerks have been hiring and handing out bonuses to their employees, as recently acknowledged by John Dew, Executive Director of the Clerks of Court Operating Corporation, during a House Criminal and Civil Justice Appropriations Committee meeting in Tallahassee.

FACT : Recognizing the need to end the clerks' inequitable budgeting and spending practices, the Senate Judiciary Committee on Wednesday, March 18, 2009, voted unanimously in favor of SB 2108, which states, in part: "The Legislature finds that, in order to enhance accountability and efficiency in state funding of court-related functions...it is necessary to provide for the appropriation of revenues from fines, fees, service charges, and costs to the clerks of court through the appropriations act . It is, therefore, the intent of the Legislature to facilitate the orderly transition from the current clerk budgeting process...to the legislative appropriation of funds... (emphasis added)."

FICTION : These bills are a "power grab" by the courts and would place all court records under the control of judges. The clerk's office would cease to exist and hundreds of employees would lose their jobs. FACT : Under state law, the clerks provide ministerial functions related to record-keeping for the courts, and those functions are already under the control of judges . Accordingly, only the clerks' court-related functions are under consideration for transfer to the courts - all other County-related duties and responsibilities would remain intact. Clerk em ployees who provide record-keeping functions in court would have the same job, only funded by the state.

FICTION : The clerks are constitutional officers and provide a "check and balance" on the judiciary.

FACT : The Florida Constitution provides that a publicly elected clerk shall exist, but lets the legislature define the clerk's functions and duties. The only entities authorized under the Florida Constitution to serve as a check and balance on :placeFlorida 's judicial branch are the legislative branch, and the executive branch. There is no fourth branch known as the clerks. SB 2108 and HB 1121 are an attempt to bring the public dollars merely collected by the clerks into the same legislative funding process that all other state entities participate in every year. All public dollars should be accounted for and distributed by the legislature, the public's elected representatives.


Sincerely,

Joseph P. Farina, Chief Judge 11 th Judicial Circuit of Florida

Editorial Cartoon of the Day


One hour standby , not a lot of blogging time today....

Videoconferencing In the Works for South Florida Courts?


Here is one good way of not dying from toxic mold in the Broward Courthouse. Don't go.
Today's Herald is reporting that a South Florida appeals court is floating the idea of allowing witnesses to testify by video-conference as a way to save the state money on travel costs.

The West Palm Beach appeals court's recommendation was made as a footnote to an opinion in a case in which cash-strapped child-welfare administrators took testimony from a Maryland social worker over the telephone -- over the objections of a father fighting to retain custody of his child.

The Fourth District Court of Appeal on Wednesday reversed a spring 2008 ruling by Palm Beach County Circuit Judge Moses Baker Jr. that declared a child, identified only as M.S., a ward of the state. Baker's decision finding the child's parents unfit relied heavily on telephone testimony from a Maryland child welfare worker, the panel wrote.

The judge also relied on written records from a Maryland child welfare agency in deciding the child was at risk if allowed to remain with his or her parents, the opinion states.

''The court . . . erred in permitting the Maryland social worker to testify by telephone,'' the appeal court said.

In a footnote to the four-page opinion, though, the panel suggested it might be time to consider changes to the state's rules of evidence to permit a judge to hear testimony by video. The appeals court panel recommended that a committee of lawyers and judges consider allowing such technology.
The rest of the story follows:
http://www.miamiherald.com/news/southflorida/story/980062.html

Wednesday, April 1, 2009

Senator Stevens: Justice Restored


You have seen it all over the news all day.

The Justice Department will move to dismiss the corruption conviction it obtained last fall against former Sen. Ted Stevens, according to a motion filed in federal court, because evidence was withheld from his defense lawyers by prosecutors.

NPR reported early Wednesday morning that Attorney General Eric Holder will order the case against the former Alaskan senator dropped rather than continue to try to defend the government's conviction in the face of mounting criticism from the judge in the case over prosecutorial misconduct.

NPR legal affairs correspondent, Nina Totenberg reported that Holder was driven to his decision to ask for a dismissal of the corruption conviction against Stevens because he "was horrified by the failure of prosecutors to turn over all relevant materials to the defense."

From NPR, "A jury convicted Stevens last fall of seven counts of lying on his Senate disclosure form in order to conceal $250,000 in gifts from an oil industry executive and other friends... Since then, charges of prosecutorial misconduct have delayed his sentencing and prompted defense motions for a new trial."

Holder was also reportedly moved to drop the conviction on account of Stevens advanced age (he is 85), the fact that he is no longer a senator.

"In connection with the post-trial litigation in United States v. Theodore F. Stevens, the Department of Justice has conducted a review of the case, including an examination of the extent of the disclosures provided to the defendant. After careful review, I have concluded that certain information should have been provided to the defense for use at trial. In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.

I am just a blogger. Blawger. Whatever. But how, how does this happen? At the JUSTICE Department? How does it happen? So is this where local governments in Dade and Broward got their silent messages from? Just wondering if the federal government sends a message you can torture and waterboard and deny habeas corpus and forfeit and seize and lock people up with civil committments after their criminal sentences end then why can't you invade attorney-client privilege and listen in here and deny counsel there and how many amendments do we have left anyway?