Legal and Lower Bond Set in Illegal Abortion Case

This Sun Sentinel Photo, published online last nite, shows Lisa Pryor, left, a cousin, and Natira Williams, sister, of defendant Tonuya Rainey, who is charged with illegally terminating a pregnancy and improper disposal of human remains, reacting to Judge Matthew Destry's decision to reduce Rainey's bail to $14,000 from $185,000.

When First Appearance Magistrate Jay Hurley raised the bond on an inmate accused of illegally aborting a fetus, calling it murder, Public Defender Howard Finkelstein shot back that the judge was acting ultra vires, outside the scope of his authority, injecting his personal feelings into a legal fact finding tour. Correctly, the PD assigned the case made an ore tenus motion to recuse.

First of all, since the Broward County first appearance system only sets a preliminary bond, an inmate has an immediate second chance to get a new bond set by the jurist assigned their case. Thus, if a good attorney can secure an instant hearing before the judge so assigned the matter in chief, an appeal to the DCA may be unnecessary.

In this instance, Judge Hurley says it was too much like a murder case to leave the bond too low. But the State had not so charged and there was no evidence to sustain his personal judgment. The PD justly appealed. The Attorney General rightly remained silent, in effect arguing that there 'was no there there.' Returned to Judge Destry, the bond was properly reduced.

What makes the case intriguing is what makes Finkelstein so special as a Public Defender. He does not subscribe to the morning line. He does not do what makes him popular. As he challenges the ‘moral’ decision of Judge Hurley, he makes a ‘moral’ decision of his own, willing to buck the public adulation currently saluting Judge Hurley’s impressive early track record at reducing jail populations. He did not do what was fashionable and popular. He did what was legally correct.

Finkelstein’s challenge sends a recurring message that this public defender will not abide by comments, which demean and disgrace his clients for their gender, ethnicity, socio-economic status, or human condition. For Finkelstein, once again it is simply not politics as usual. Because he is going to remain a watchdog and sentinel to guard the rights of those too often forgotten by the system.

Judge Hurley's higher bond may have answered to his own higher authority. But in a small way the Fourth DCA reminded the judge that abortions are not illegal, and have not been since Roe v. Wade some 40 years ago.

Ironically, as it says on the back of my citizen's rights card, the final determinant of what charges to be filed against anyone is not the police or the judge but the state attorney. And if facts are elicited which later lead to an amended charge, a more serious one, her bond can indeed be raised again. That will ultimately depend on what the state attorney does with the case. So the last chapter on Ms. Rainey may not be written yet. Just because the police concluded one thing does not guarantee that a state attorney in the filing division will not conclude another.

Judges on 4th Remember Gideon by Asking for Shorter Briefs

No, this picture has nothing to do with Gay Pride Weekend in Fort Lauderdale. First a blog about Gideon's anniversary, now a 4th District Court of Appeal ruling that too much of Gideon is not a good thing. In today's Sun Sentinel, a piece by Dianna Cahn lamenting the jurists' complaint that they need to limit the number of pages in post conviction briefs in non capital cases.

Say the justices who campaigned for their jobs by the way, the growing number of lengthy motions to the court by convicts can hinder rather than enhance justice. Not feeling lots of sympathy here, sorry.

The evidence that led to a guilty verdict in Alan Hedrick's murder trial was so "overwhelming" that an appeals court declared his 130 pages of arguments claiming an unfair trial to be not only without merit but "unfounded," and "abusive" of the process. But wait a second, team, the guy did this on his own. He had no freaking lawyer.

While the court was concluding that the "defendant's abusively lengthy post-conviction filings which raised unfounded claims of prosecutorial misconduct and paranoid allegations of vast conspiracy by government officials were wholly without merit," somewhere somehow you gotta note the dude was acting alone.

In January 2005, after his conviction, Hedrick — acting as his own attorney — filed a 109-page motion raising 24 claims alleging he had not received a fair trial or a proper defense. He then filed another motion through a lawyer with more allegations, the opinion states. The trial judge held hearings on two of the claims, then rejected the rest. The appeals court upheld those decisions.

The appellate judges added that the rule for post-conviction relief "was intended to provide relief for a very narrow class of serious errors that could not be corrected on direct appeal." Instead, they said, these motions are now filed in almost every case, forcing a search for a possible needle in a haystack. And I am supposed to feel sorry for them? Whoa, hold the horses. Okay, impose page limits like you do with attorneys. Go right ahead.

After all, 'pro se' litigants are a pain in the ass, right. See that Mr. Gideon, see how we are remembering you on your anniversary? And Bruce Winick jumps right in as an echo, chiming it would be a good thing to reduce 'frivolous claims.' Because why, the Gideons of the world are all frivolous?

How about this? How about establishing an Office of the Public Advocate, and turning each and every pro se appeal over to a law clerk, or law clinic, to effectively summarize and weed out the arguments advanced by the frustrating 'pro se' petitioners, but insuring that they get their claims and arguments heard nevertheless. I know they suck, they are long, they are discombobulated, they are a mess, they are compounded, they are complicated. But sometimes there are diamonds in the rough. And it's your job to read them. OK, impose limits not restraints; impose regulations, not restrictions; but don't whine about them.

All we are saying, is give 'pro se' a chance.

http://www.sun-sentinel.com/business/custom/consumer/sfl-flbpostconvictionappeal0323sbmar23,0,5460329.story

4th DCA Affirms Judge Lebow

The headline reads that the 'Fourth DCA has affirmed Judge Lebow.' Those new to this blog or this issue may know not of which we speak.

Simply, here in County Broward, a cataclysmic error of seismic proportion was made by the Office of the State Attorney. In their zeal to prosecute, maybe even a guilty man, some of their own chose to listen in furtively on taped conversations of inmates with their lawyers as they strategized for trial. As you can see from the tape above, way back in 1963, a folksy sheriff named Andy Griffith even knew better.

The prosecution justified their arguments on the grounds that public notice had been given to the incarcerated that their conversations may be eavesdropped upon. They warned, they contend, that anything anyone said could be used against them, and we gave you notice. To do so, the forces of law surrendered their badge of righteousness and chose to become elements of injustice, invading the sanctity of the attorney client privilege for the expediency of the moment; to score a victory on a particular case whilst shattering the integrity of the criminal justice process.

Their incursions into privacy so discovered, atttorneys for the accused sought a mistrial. Judge Lebow declined to go so far, concluding instead that the sanction warranted for the prosecutorial malfeasance of a few was to exclude as prosecutors the entire State Attorneys' office, the voices of incursion having echoed throughout their chambers. So Judge Lebow declared. Today, she was affirmed by appellate powers greater than she.

What follows is the DCA decision, as first posted this afternoon on the JAABLOG website, once again ahead of the courthouse curve. When does Bill have time for court?http://jaablog.jaablaw.com/2009/02/24/4th-dca-backs-lebow.aspx?ref=rss

State v. Martinez
"Even if we were to conclude that Weir and Gaines are not controlling and that extraordinary writ jurisdiction may be invoked to review an order entered after a criminal trial commences, we would deny the petition in this case because the trial court did not depart from the essential requirements of law. See Pettis, 520 So. 2d 250; see also State v. Smith, 951 So. 2d 954, 958 (Fla. 1st DCA 2007) (recognizing that the standard for certiorari review “pertains to the seriousness of the error, not the impact of the ruling”). The trial court entered a thoughtful order after an extensive evidentiary hearing.

The State has provided the transcripts of the hearing, which we have reviewed. The record supports the trial court’s findings that the case law cited is distinguishable and that there was no waiver of the attorney-client privilege based on the circumstances in this case. Although the order states that the trial court did not need to consider the contents of the calls in making its ruling, the recordings were played during the hearing, the contents were discussed at length, and the trial court expressly found that the calls contained trial strategy. The order also recognizes that the conversations included privileged information that has been discussed throughout the State Attorney’s Office.

The failure to address the contents of the conversation in the order and expressly find actual prejudice is not “a violation of a clearly established principle of law resulting in a miscarriage of justice.” See Pettis, 520 So. 2d at 254. Even if we had jurisdiction, we would conclude that the State has not shown a preliminary basis for relief, and a response from the defendant would not be necessary. Fla. R. App. P. 9.100(h)."

Here is the previous Broward Law Blog piece on the subject, calling for the 4th DCA to affirm. It is great that they have.

http://browardlawblog.blogspot.com/search/label/Judge%20Lebow

4th DCA JNC Seeks Candidates for Vacancies

Fourth District Court of Appeal Judicial Nominating Commission continues to accept applications to fill Judge Larry Klein's judicial vacancy and now announces that it is accepting applications to fill the vacancy on the Fourth District Court of Appeal created by the resignation of Judge Jorge Labarga.

The application deadline for both vacancies is 5 p.m., Tuesday, Jan. 27, 2009.Applicants must have been members of The Florida Bar for the preceding ten years, registered voters and must reside in the territorial jurisdiction at the time of assuming office.

Applications can be downloaded from The Florida Bar's Web site, www.flabar.org, or can be obtained from the office of the Chair: Kara Berard Rockenbach, Chair Fourth District Court of Appeal Judicial Nominating Commission1401 Forum Way, Suite 500 West Palm Beach, FL 33401The original completed application plus nine copies and all attachments must be delivered to the Chair at the above address no later than 5 p.m., Tuesday, Jan. 27.

Submission of a photograph is encouraged. Applications received after the noticed deadline will not be accepted for consideration by the commission in accordance with Amended Local Rule III of the Judicial Nominating Commission, Fourth District Court of Appeal Local Rules.

If an applicant previously applied for Judge Klein's vacancy and wishes to be considered for Judge Labarga's vacancy, please send a letter to the Chair indicating this request for consideration for both vacancies by the stated deadline.

If an applicant previously submitted an application to this commission within the past three months for prior judicial vacancies, the applicant has the option of reactivating his/her prior application by sending the Chair a letter by the stated deadline specifically requesting consideration for one or both vacancies.

With the letter, the applicant may provide any supplemental information to be considered by the commission. All materials must be submitted by the deadline published in this notice.Members of the bench, Bar and the public are encouraged to contact members of the commission concerning applicants for judicial positions.

A list of the Fourth District Court of Appeal Judicial Nominating Commission members is available on The Florida Bar's Web site or by contacting Chairman Rockenbach by phone, e-mail at krockenbach@gprmpa.com or letter to the above address.