BOB NORMAN'S DAILY PULP
Ostrow Speaks About Airport Cocaine Arrest

   (Thanks to "Anonymous")

  

                                  

                            It's been a month since State v. Langdon was issued by the 4th DCA.  

                                                  How is it being applied by the judges?  

                        Has it effectively killed alternative drug treatment sentences for offenders 
                                                 who have non-drug related priors?

                                                     What is the purpose of this case?  
             
            How many offenders will score mandatory prison sanctions based only on drug related 
                                   priors that are eligible for alternative sentencing in the first place?  

                                                            STATE v. LANGDON

                        http://www.4dca.org/Apr%202008/04-09-08/4D07-316.opC040808.pdf 

                                                               (thanks to CM)

  

  

                                                                                     


                                   "I feel I would help establish a connection with the bench."
                                                                      -Gary Ostrow


                                           Public defender candidate faces cocaine charges

"While in Tallahassee on May 2 filing last-minute papers to run for Broward County public defender, criminal defense attorney Gary Ostrow was arrested on a charge of cocaine possession, according to a Florida Department of Law Enforcement report.

Tallahassee police officers arrested Ostrow, 52, at 11:35 p.m. The report did not specify a location. The charge is a third-degree felony, punishable by up to five years in prison."

  

JNC COUNTY COURT APPLICANTS MAY 8, 2008 - The JNC will meet for a first round of pre-interview deliberations on May 15, 2008.  Interviewees will be determined then.  Interviews likely to be on May 28. 

1.    William W. Haury, Jr.
2.    Edward H. Merrigan, Jr.
3.    Joseph Zager
4.    James Wells
5.    Jorge E. Hurtado
6.    Christopher Mark Neilson, P.A.
7.    Michele A. Cavallaro
8.    Melinda Kirsch Brown
9.    Thomas M. Wich
10.    Michael A. Usan
11.    Mari S. Blumstein
12.    Brenda Di loia
13.    Michael Lukasievich
14.    Kathleen R. Pugh
15.    Michael Scott Bloom
16.    Richard A. Sachs
17.    Charles S. Rowley, Jr.
18.    Christopher William Pole
19.    Elizabeth G. Daugherty
20.    Gerard S. Williams
21.    Bradley H. Weissman
22.    Kenneth L. Gillespie
23.    Michael Hursey
24.    Roger G. Stanway
25.    Phoebee Rebecca Francois
26.    Lorena Valenzuela Mastrarrigo
27.    Judith Wolfson Levine
28.    Monique Arianne Broche
29.    Nadine L. Girault Levy
30.    John Matthew Brooks Hurley
31.    Robin S. Moselle
32.    James Saunders, III

  

On Friday May 23, 2008 12 noon-4 pm--at our law office 629 SE 5th Ave, there will be a fundraiser For Pedro Dijols. All are welcome to attend. There will be food and refreshments served. Any questions please call me.

Steve Melnick
954-462-7234

Political advertisment paid for and approved by Judge Pedro Dijols for Circuit Court group 3 non-partisan. The purchase of a ticket for a contribution to the fundraiser is a contribution to the Judge DiJols campaign for circuit court group 3 non-partisian.

  

SENTINEL
Mike Mayo: Should Help Me Howard Segment Go On Ice?

"Arreaza said it's not right that Finkelstein gets regular free airtime in an election year. He sent a protest letter to WSVN general manager Robert Leider this week, citing federal broadcast rules for candidates.

On Wednesday, Leider responded that equal-time provisions do not apply to news broadcasts. "WSVN respectfully declines your request," Leider wrote, "because Mr. Finkelstein's broadcast appearances have been part of regularly-scheduled, bona-fide news programming."...

"This is an attempt to hurt me and my family," said Finkelstein, who will soon have two daughters in college. "This is clearly a campaign to shut me up because I've rocked the boat."...

"Howard's the one who's always crying about things being fair, now he wants to stay on TV while running for office?" Arreaza said Wednesday...

"It's not clear cut, it could go either way," said Kelly McBride, a media ethics specialist at the Poynter Institute, a journalism think tank in St. Petersburg. "Taking him off the air today wouldn't change much because he's already been a TV personality for more than 10 years. You can't erase that. It would be mostly a symbolic move."

This is tough for me, because I'm simpatico with Finkelstein on many of his views. I like the way he's handled his first term in office. He's jousted with cities, the state and the Sheriff's Office on treatment of the mentally ill and homeless. He's rankled the local judiciary by spotlighting inappropriate behavior.

But that doesn't mean Arreaza doesn't have a valid complaint.

The fairest thing the station could do is to shelve Help Me Howard until this election cycle is complete."

Who Signed Laura Seidman%sq243%s Performance Evaluation?

  

                Opportunism: The art or practice of taking advantage of opportunities or 
                circumstances, or of seeking immediate advantage with little regard for 
                                                   ultimate consequences.

     This year Broward County finds itself with many firsts in the judicial selection process.  There are four incumbent judges being challenged, there are 3 minority judges with opposition, and there is a sitting judge's spouse running against another sitting judge.  

     Why are there certain judges gaining opponents while the rest do not?  Why are the majority of the incumbents without challengers non-minorities?  Is this a coincidence?  Are the others so good they do not deserve an opponent?  Or, are there many that should have an opponent that do not because they have a voter friendly name?

     We as attorneys have an obligation to our clients, to our profession, and to our community to support or oppose judges based on their performance on the bench and the integrity (or lack thereof) they bring to the profession while off the bench.  Nothing else should ever be allowed to seep into our decision making process. 

     In listening to the candidates talk, the common thread is "I will work hard for the community and make it a better place for all to live."  They say "I am here to serve the community and I want to serve you."  They end with "I want to make Broward County better."  I have yet to hear a candidate state why they should replace the incumbent, or how they would do a better job.  When I hear this I wonder, what's the real reason the incumbent has opposition?  Could it be deeper than wanting to "serve?"  Or, is it simply the candidate believes that they can defeat the incumbent due to disproportionate voting strengths among the electorate?

     We all agree that Democracy should prevail, that's the American way.  But should it be at the expense of those who do not have the voting base due to their name or ethnicity?  It's one thing if the incumbent is failing on the job, or the challenger feels they can do a better job, but it's a bit sinister if it's not.  We have worked very hard over the past few years to bring diversity to the bench.  Our bench must be reflective of the community it serves.  There is nothing more important then for a person to feel equal when they enter and leave the courthouse. 

     Are the candidates running against minority defendants really helping the community?  Or are they just helping themselves at the expense of the community?  Are they exploiting a weakness with little thought to the ultimate consequences, or do they truly believe they can do a better job?

     Reading yesterday's Daily Business Review, I noticed the story about Roniel Rodriguez IV filing to run against Miami-Dade Judge Spencer Eig.  After speaking with CABA, he reevaluated his position, and decided to drop out of the race.  The reason given by CABA's Sanchez-Medina was a strong one.  Here is what was said:

            “A race against a well-respected, accomplished judge like Spencer Eig who has done so much for 
       this community was not the right race at the right time,” Sanchez-Medina said in a written statement." 

     Please reevaluate your position challengers.  If you are doing it because of poor judicial job performance or integrity issues off the bench, then go forward 100%.  Otherwise, please step aside for our community.  You and Broward will be better for it in the end.

Jeff Ivashuk

  

Torts -- Negligence -- Supervision -- Child care center is not liable under theory of negligent supervision for injury sustained when bathroom door slammed on child's hand, partially amputating his pinky finger
Reported at 33 Fla. L. Weekly D1253b
 

  

Criminal law -- Child abuse -- Defendant was erroneously convicted of child abuse where state failed to present any evidence of the mental injury element of the offense -- There was no evidence that defendant's acts could reasonably be expected to result in an injury to the intellectual or psychological capacity of the child, as evidenced by a discernable and substantial impairment in the ability to function within the normal range of performance and behavior
Reported at 33 Fla. L. Weekly D1264a

Criminal law -- Jurisdiction -- Statewide prosecutor -- Where information filed by statewide prosecutor contained conclusory statement that offenses occurred in two or more judicial circuits, but information did not contain factual allegations to establish that offenses occurred in two or more judicial circuits, trial court is required to make factual determination as to whether statewide prosecutor had jurisdiction -- Appeals -- Appeal following guilty plea -- Defendant who entered guilty plea could properly argue on appeal that trial court did not have subject matter jurisdiction because statewide prosecutor did not have jurisdiction -- Plea --Withdrawal -- Trial court must appoint conflict-free counsel before ruling on motion to withdraw plea   Reported at 33 Fla. L. Weekly D1265a

Criminal law -- Plea -- Withdraw -- Error to denying motion to withdraw plea after sentencing without an evidentiary hearing, as record does not conclusively refute claim that defendant was assured by his attorney that he would be able to attend boot camp and significantly reduce his prison time -- A defendant's entry of a plea based upon his attorney's mistaken advice about sentencing can be a basis for allowing a defendant to withdraw the plea -- Due process requires a hearing, unless record conclusively shows defendant is not entitled to relief
Reported at 33 Fla. L. Weekly D1253a

Criminal law -- Search and seizure -- Stop -- Error to deny motion to suppress physical evidence and statements made by defendant after officer responding to BOLO immediately arrested him, handcuffed him, and administered Miranda warnings where officer lacked probable cause to make warrantless arrest -- Earlier consensual encounter in which a fellow officer, who later issued BOLO, observed defendant side-stepping diagonally up driveway between two cars and asked defendant to come over and talk with him, defendant approached, gave officer his name, and consented to frisk by a second officer, and officers allowed defendant to continue on his way did not give officer reasonable belief that defendant had committed or was committing crime -- Facts and circumstances within officer's knowledge were insufficient to warrant reasonable belief that defendant had committed or was committing trespass -- Fact that officer who issued BOLO later found black powder pistol on grass after defendant had left the area did not raise reasonable suspicion that defendant had been carrying the pistol on or about his person or had discarded it   Reported at 33 Fla. L. Weekly D1261a

Criminal law -- Post conviction relief -- Counsel -- Ineffectiveness-- No error in denying motion for post conviction relief, asserting that trial counsel was ineffective for failing to file motion to suppress confession based on defective Miranda warnings -- Trial court correctly found that there was a lack of proof on part of defendant that his counsel's failure to suppress his inculpatory statement resulted in prejudice, i.e., that this counsel's errors were so serious as to deprive defendant of a fair trial -- Defendant cannot establish a reasonable probability that result of proceeding would have been different, but for counsel's failure to suppress inculpatory statement which acknowledged defendant's possession of firearm, where arresting officer testified that he observed defendant
remove an object from his waistband and throw it to the ground, retrieved the object thrown on ground, which turned out to be a firearm, and maintained visual observation of spot where object was until he could pick it up
Reported at 33 Fla. L. Weekly D1253c

  

The Online Newsletter of the State Attorney's Office, 17th Judicial Circuit

May 2008

  

                                 

JAABLOG invites institutions of higher learning to utilize the following Ethics Hypotheticals in its curriculum:

CASE STUDY ONE:

DEFENDANT: Black Male.

CHARGE: Possession of Cocaine.

HEARING TYPE:  Motion To Suppress.

Officer testifies on cross examination that drug sniffing dog discovered the cocaine charged in the Information approximately one half hour after the initial traffic stop, minutes after arriving on scene.  Upon repeated questioning, Officer reaffirms his answer.

Judge interrupts. Explains while making eye contact with Officer "the Court will exercise its right to question you on the most important issue of when the drug sniffing dog arrived.  It is of the highest importance as to when the dog arrived.  If you remember the dog arrived after the time it took to write the traffic citation, the evidence must be suppressed.  Officer, when did the dog arrive?

Officer: "Oh, that's right, while I was writing the ticket, your Honor."

OUTCOME: Motion to Suppress denied. 

SENTENCE: Mandatory prison sanction under the guidelines.

DISCUSS:  Was this an improper line of questioning?  Was there an ethical breach by the Court? 

CASE STUDY TWO:

DEFENDANT: Black Male.

CHARGE: 3rd degree felony, Battery On A Law Enforcement Officer.  Defendant is HOQ (meaning maximum potential sentence is doubled if the judge agrees with the State Attorney).

HEARING TYPE: Trial.

During State's case, the necessity for a Richardson Hearing arises (potential discovery violation).  Judge orders highly exculpatory evidence, not previously disclosed by the State, excluded.  Guilty verdict follows after hours of deliberation. 

SENTENCE: 10 years prison - the maximum.

DISCUSS: For purposes of discussion, does it matter if the Court of Appeals, in a strongly worded opinion, reverses the trial court based on the discovery violation?  Does it matter if the Prosecutor, after the sentence was pronounced, laughs at the crying defendant and mimics his inner city dialect, in full view of the Defendant and Judge, who does not object?  Does it matter if it is later alleged that the Judge and Prosecutor may have been involved in an inappropriate relationship during the trial proceedings?  Are there ethics violations, and, if so, how should they be remedied?

CASE STUDY THREE:

DEFENDANT: Black Male

CHARGE: Violation of Probation for 3rd Degree Felony Offense of Cannabis Distribution.

Defendant is charged with violating his probation for the first time.  He has never had a felony except for the one he is currently serving probation.  He is alleged to have committed the new law violation of Trespass while on probation.

The State Attorney offers the maximum penalty under law, five years prison, despite the fact the Defendant does not score anywhere near mandatory prison sanctions.  The Court, in an unusual move, refuses to make a counter offer which undercuts the State.  The State explains at a later hearing that it wants the Defendant to provide information on cannabis dealers.  The Defendant is unable to provide said information.

OUTCOME: Final Violation of Probation Hearing held.  Multiple defense witnesses testify they gave valid legal permission to the Defendant for him to be on their premises.  The Court, based on the "credibility of the witnesses", finds the Defendant to have commited the trespass violation.

SENTENCE: Five years prison - the maximum.

DISCUSS:  For purposes of discussion, would it matter if the trespass allegation was later tried before a County Court judge who, after listening to the same witnesses, found the Defendant to be Not Guilty?  Would it matter if the Court of Appeals later affirmed the Circuit Court's finding, based on the differing standards of proof?  As in #2, would it matter if it is later alleged that the Judge and Prosecutor in question may have been involved in an inappropriate relationship during the violation of probation hearings?  If proven, what should the remedy be?  If it can't be proven, what is the harm to future proceedings?

CASE STUDY FOUR:

DEFENDANT: Black Male

CHARGE: Possession of Cocaine Residue (a crack pipe with the mere presence of the chemical molecules that make up cocaine)

HEARING TYPE: Trial

During the jury instructions, the Judge reads the lengthy charging instructions in the usual monotone, rapid pace, rarely looking up or making eye contact with the jury.

The following portion of the instruction, damaging to the defense based on the evidence presented at trial, is read (after a noticeable pause), accompanied by deliberate, sustained eye contact with each of the jurors:

"If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed."

Judge returns to instructions without making sustained eye contact with the jurors again.

OUTCOME: Guilty after hours of deliberation.

SENTENCE: Five years prison - the maximum.

DISCUSS: Did the Judge violate standards of neutrality?  Does it matter if the inexperienced Defense Attorney failed to make a record of the questionable eye contact? If wrongly convicted, is it ok because the Defendant had committed many other felony offenses in his lifetime for which he had not been caught?  

                            KEEP YOUR EYES ON YOUR OWN PAPER - NO CHEATING ALLOWED

  

SENTINEL
Laura Seidman Takes A Beating

Topix: Seidman

"Broward Politics Blog" (Broke Seidman Story)

Judge Shutter: Making A Difference

Jim Lewis Running, But Not For Judge

DAILY BUSINESS REVIEW
The "Name Game" In Broward and Miami Judicial Elections

HERALD
Our Opinion: Imprisoning Felons Comes At A High Cost

ORLANDO SENTINEL
DOT Targets Judge Who Threw Out 7,000 Transponder Tickets

Cantero Talks About Quitting High Court

JQC Gives Aleman Treatment To Seminole Judge

TALLAHASSEE DEMOCRAT
Crist asks court for advice on judge

60 MINUTES
Dallas County DA Does The Right Thing (thanks to "Anonymous")

  

                                                            

                                                       2010 General Election

                                                          Circuit Court Judges

                           Aleman, Carney, Gates, Greenhawt, Imperato, Lebow, Luzzo, 
                                            O'Connor, Tieman-Bristol, Vitale, Williams
 
                                                         County Court Judges

                        Beller, Cowart, Dishowitz, Ireland, Lazarus, Pollack, Pratt, Robinson, 
                                                Seidman, Shutter, Skolnik, Trachman

              (Please post a comment if any 2010 courthouse public servants have been forgotten)

  

Torts -- Automobile accident -- Settlement and release --Reformation or rescission -- Settlement agreement entered into by plaintiff and insurer for owners of vehicle which was being driven by another person when it struck plaintiff's vehicle -- Error to enter summary judgment for defendants in plaintiff's action to reform or rescind release on ground that the name of the driver of the vehicle which struck plaintiff's vehicle was included on the release by
mutual mistake -- Affidavit in support of defendants' motion for summary judgment did not controvert plaintiff's allegations that the inclusion of driver's name in release was result of a mistake
Reported at 33 Fla. L. Weekly D1231a
 

  

Criminal law -- Limitation of actions -- Sexual battery against child over age 11 but less than 18 by person in custodial authority-- Attempted sexual activity with child 12 years of age or older but less than 18 by person in custodial authority -- Lewd, lascivious, or indecent act upon or in presence of child under age 16 -- Public employees -- Statute which extends the statute of limitations for misconduct in office by public employee is not unconstitutionally vague -- Statute applied to defendant's actions while he was employed as public school teacher
Reported at 33 Fla. L. Weekly D1225c

Criminal law -- Speedy trial -- Extension of speedy trial period --In light of delays occasioned by state's efforts to obtain defendant's presence in county, together with its actions to obtain blood and saliva samples from defendant, trial court did not abuse discretion in granting state's motion for extension of speedy trial period based on exceptional circumstances  Reported at 33 Fla. L. Weekly D1223b
                                           Courtesy of Florida Law Weekly       Subscriptions (800) 351-0917
 

  

                                                                        The Candidates

                                                                                 

                          Ian J. Richards                                                                     Catalina Avalos (I)

  

                                        
                                                 You Can Do That On The Internet

JAABLOG is an open forum, dealing with Broward County courts, politics, and police.  It always has been, and always will be. 

Anyone who submits a concise, well-written, and thoughtful piece will be published on the main page.  This has been the deal since day one (check the Archives).

This bears repeating because there are multiple contested elections this year.  The offer extends to candidates and their committees as well.  All candidates have equal access to JAABLOG publication. 

Up to this point in time, few people not involved in maintaining JAABLOG have submitted work for publication.  If the perception exists that JAABLOG favors one candidate over another, or one point of view over another, this is the reason why. 

If you believe JAABLOG needs to broaden its focus, you can make it happen.  Contribute.  If you are afraid of retribution from an employer or the powers that be, publish your article under a pseudonym, or submit them from disguised email addresses.  Anonymity is guaranteed.

As for the Comments Section of JAABLOG, it will remain unmoderated.  That's part of the deal.  Comments are often insightful, and often meanspirited or cruel.  Consider this fact before submitting a work or campaign notice for publication.

Send campaign notices and well-written, thoughtful articles to wgelin@yahoo.com with the heading "For Publication".

                                                GET YOUR MESSAGE OUT ON JAABLOG 
                               (BUT DON'T SAY WE DIDN'T WARN YOU IF YOU GET SLIMED)

  

County Court Judge, Grp. 28:

Stacy M. Ross v. Warren J. Grinspoon

May the Best Candidate Win!

  

Criminal law -- Driving under influence -- Evidence -- Hearsay --Exceptions -- Public records and reports -- Business records --Confrontation of witnesses -- Testimonial out-of-court statements --Admission of those portions of breath test affidavit pertaining to breath test operator's procedures and observations in administrating the breath test constitute testimonial evidence and violate the Sixth Amendment's Confrontation Clause in light of U.S. Supreme Court's holding in Crawford v. Washington -- Breath test affidavit is testimonial in nature -- Affidavit was created by technician solely for purpose of proving a critical element in defendant's DUI prosecution -- General rule that records kept in ordinary course of business are generally admissible does not apply when record is being prepared at specific request of law enforcement agency and is not simply a record that is normally generated by that business under circumstances that do not involve law enforcement -- In case at issue, it was error to admit those portions of breath test affidavit pertaining to breath test technician's procedures and observations in administering the test -- Although state met its burden of showing that breath technician who prepared affidavit was not available for trial, Crawford's requirement that defendant have prior opportunity for cross-examination was not satisfied -- Discovery deposition does not serve as functional substitute for in-court confrontation of witness and, accordingly, defendant did not waive opportunity to cross-examine technician by failing to depose her under rule 3.220(h)-- Although statute gives defendant a right to subpoena breath test operator as adverse witness at trial, this provision does not adequately preserve defendant's Sixth Amendment right to confrontation -- Moreover, burden of proof lies with state, not defendant -- Appeals -- Certiorari -- No merit to state's argument that district court erred in granting certiorari because the circuit court's decision did not violate a “clearly established principle of law,” an argument based on state's contention that law was not clearly established because the Crawford decision refrained from defining testimonial statement   Reported at 33 Fla. L. Weekly S279a

Criminal law -- Evidence -- Hearsay -- Exceptions -- Business records -- Confrontation of witnesses -- Testimonial statements --Lab reports and similar materials, when prepared for criminal trials, are testimonial statements and their admission without the preparer's testimony runs afoul of U.S. Supreme Court's holding in Crawford v Washington and the Confrontation Clause -- In the instant case, the trial court erred in admitting Florida Department of Law Enforcement lab report under business record exception when the person who performed the lab test did not testify -- District court properly held that the report, while admittedly a business record, was clearly prepared in anticipation of trial and meant to establish an element of the charged offense, the illegal nature of the substances possessed by the defendant -- Report was inadmissible where state failed to show unavailability of witness who performed the lab test   Reported at 33 Fla. L. Weekly S265a

Criminal law -- Evidence -- Hearsay -- Testimonial statements -- Rule set forth in Crawford v. Washington, which provides that testimonial hearsay is inadmissible in a criminal prosecution unless the declarant is unavailable and the accused has had an opportunity to cross-examine the witness, does not apply to probation or community control revocation proceedings -- Revocation of probation or community control proceedings are not criminal prosecutions   Reported at 33 Fla. L. Weekly S273a
                                    Courtesy of Florida Law Weekly       Subscriptions (800) 351-0917