Thursday Opinions From the 4th
OCTOBER 6 OPINIONS FROM THE 4th DCA REVERSING OR AFFIRMING BROWARD CASES
Reddick v. State, Judge Green, Michael Gates case. The trial judge - the opinion does not specify whether it was Green or Gates - would not allow Reddick to represent himself because the trial court found that Reddick did not have the appropriate litigation skills. Reversed and remanded.
State v. Kasparian, Imperato’s ruling granting a motion to suppress is reversed. Cops went up to Kasparian and before they said anything to him, he dropped drugs. "Drop then stop" case (as opposed to "stop then drop" case).
State v. Echevarria, Judge Gold’s ruling granting a motion to suppress is affirmed. Without reasonable suspicion, cops go up to car in which Echevarria is seated. Because the cop had to lean into the car to see the drugs, Gold found that the drugs were not in plain view.
when you have judges who, somehow, were elected to the bench to give credence the question, "what do you call an attorney with a 40 I.Q.?" and the response, "Your Honor" We are going to have tie-ups in the DCAs and in the Florida Supreme Court. When judges become so indebted to prosecutorial misconduct so as to allow them to hold a criminal defendant indefinitely in order to coerce confessions or guilty pleas, they are guilty of obstruction of justice. Let me give you an example: Judge Gates had before him a clear case where it was proven that the City of Hollywood Police Department altered and falsified a video of a police beating which put the victim (the arrested person) in intensive care for four days and released from the hospital under the sheriff's representations that the jail hospital could provide all the medical care needed by the nearly-killed arrestee, when, in fact, there was no such treatment available in the jail. Judge Gates concluded that the evidence was altered and falsified, but refused to set aside the conviction under Rule 3.580 (not 3.850), holding that the evidence was not newly discovered; it was known to the public defender all along. Thus, Judge Gates allowed and encouraged the City of Hollywood to alter and falsify evidence in the future. What he should have done was to immediately refer this cast to the Attorney General for prosecution and to discharge the defendant, since is was abundantly clear that it was the police who assaulted the defendant and not vice versa. The case went to appeal, and the defendant Moved the 4th DCA to relinquish jurisdiction, so that the trial court would have a second chance to review this matter, now, under Rule 3.850. The DCA denied the motion, and approximately a year later, affirmed 'without prejudice to the defendant to raise his issues in the trial court under Rule 3.850'. A Motion to Vacate was filed in early October of last year; Judge Gates gave the State 60 days to respond, deeming the defendant's liberty less important than a civil matter where the issue in controversy is less or greater than the jurisdictional limits of either a small claims matter, or a circuit civil matter. 91 days later (and 31 days out of time), the State Requested another 30 day continuance, based upon their assertion, "we are in default". (DAH!) Judge Gates granted the motion without giving the defendant an opportunity to respond to the State's reasons for requesting the continuance. It was therefore easier for the State to secure a continuance that would have been appropriate when a litigant defaults on a 20-day summons. Before the ink was dry on the judge's Order, the State checked out the clerk's file and filed, yet, another continuance. The State, this time, did not even provide the defendant with a copy of their motion. Judge Gates has, apparently, assumed that as long as this case is in limbo, he will not have to deal with a police department altering records and (continued next)
false police reports and perjured testimony at trial. At a hearing before sentencing, the ASA advised the Court that the video was so screwed up that he ordered the City of Hollywood to re-alter the video "to make it appear logical; the only way that it could be." The ASA left it to the judgment of the police department as to how to re-alter the video to make it appear logical. The ASA provided the re-altered video to defense counsel (the PD) (if you can call them 'defense counsel'), who did not object to the 11th hour and 59th minute Brady matter and, according to the Assistant PD, "assumed that the re-altered video was the same as the previous videos provided by the police department"; she did not question the re-alteration of the video. She did not object, either because of utter lack of concern, or absolute incompetence." The PD had the evidence all along; they had at the defendant's expense and urging video experts who would have attested to the falsification of the videos by the police department. Mr. Finkelstein thought so much of the videos that he summoned Channel 7 in to do a story on the issue. The other news agencies also reported on the falsified video. Links to some of the stories are provided in the website attached. Mr. Finkelstein also assigned two assistants to defend this case, Larry Schweiker and Madeliene Tores. Their pictures appear on the website, also. The assistants persistently offered the defendant no prison time, no jail time, no probation, "just plead guilty and go home." This is he type of representation exhibited in this judicial circuit, and hopefully, the new Chief Judge will bring an abrupt end to this type of representation of criminal litigants. Anyway, as stated, in Early October of last year, defendant's Motion to Vacate was filed. Today, July 18th, 2007, that Motion has not been heard. The case is presently before the 4th DCA, again, and the Court has threatened to impose sanctions against the State on any further delays. Oops, just yesterday, the State (the Attorney General), has asked for another extension. It seems that they cannot communicate with the State Attorney to ascertain the status of the case. Now, if you were Satz, would you fess up to the knowing use of false and altered testimony, or, would you hide your head in the sand and keep your mouth shut? Satz has chosen to follow the latter course. The Asistant State Attorney who prosecuted this case resigned; however, he has protected his ass by making certain matters of record so that he will not be held holding the bag when this case finally comes to roost in Mr. Satz' lap.
The point is that under the old watch in this judicial circuit, this kind of conduct on the part of a judge was acceptable. Under Judge Tobin, I am sure that appropriate judicial qualification action measures will be taken. Meanwhile, the defendant ROTS in prison awaiting justice. If the 4th DCA does not act affirmatively and forcefully on this (next..
the defendant will have served the entirety of his 60 month sentence and justice will have been lost. This, all thanks to incompetency from the bench as well as from the Office of the Public Defender. By the way, Finkelstein advised, "these are my best lawyers..." Let me say this, if this was their best, I would hate to be represented by either the "best", or any thing under their best.
John McNamara
Videos, motions and other proofs are set out on the website. The present 4th DCA case number is 1511 (4D 06-1511)
http://groups.msn.com/terrorisminblue
If you cannot click on this link, copy and paste it into your address bar.
not easy to down load
IN THE CIRCUIT COURT OF THE SEVENTEENTHJUDICIAL CIRCOIT,IN AND FORBROWARD COUNTY,FLORIDAGENERAL JURISDICTIONDIVISIONPage 1CASE NO.MARILYN BYRD TOBKIN,01-17528 39/90.,IPetitioner,v.DONALD ALAN TOBKIN,Respondent- x633 So. Andrews AvenueFort Lauderdale,FloridaDecember 12, 200210:00 a.m.- 12:05 p.m.PARTIAL TRANSCRIPTDEPOSITIONOF MARILYN TOBKINTaken before ROBERT WOLINSKY,RMR,RegisteredProfessionalReporter and Notary Publicfor the State of Florida at Large, pursuant toNotice of Taking Depositionfiled in the abovecause .CHOICE REPORTINGSERVICEDade*Broward*Palm Beach(305) 374-2222(954) 792-4446
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Puge2PHYLLIS L. PRITCHER,ESQ.524 So. Andrews Avenue, Ste. 200NFort Lauderale,Florida 33301Also PresentFixel & La Rocco3850 HollywoodBlvd., Ste. 300Hollywood,Florida 33021BY: TERRY FIXEL, ESQ.On behalf of the PetitionerTele: (954) 981-2200E X H I BITSAPPEARANCESRe-CRe-DDONALD ALAN TOBKIN, ESQ.Pro SeWitne35Direct CrossMARILYN TOBKIN3I N D E X123456789101112--,I13141516171819202122232425CHOICE REPORTING SERVICEDad •••Broward •••Palm Beach
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1Thereupon--2MARILYN TOBKIN3was called as a witness by the Respondentand,4having been first duly sworn, testifiedas follows:5DIRECT EXAMINATION67************************************************8BY MR. TOBKIN
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.,....123MS. NEWMARK:You don't have to answerthat under your right to privacy.THE WITNESS:I was sexually abused.Page 44BY MR. TOBKIN:56Q.By Judge Ross?MS. NEWMARK:The same instructionto7you;ifyou don't want to answer it.8BY MR. TOBKIN:910Q.A.Were you sexually abused by Judge Ross?Go read the newspaperarticles.It's11already in print thanks to you.12Q.What year did you discloseit to the13newspapers,that Judge Ross sexually abused you?14A.You dragged me to the Miami Herald15while I was pregnant with Tabby, to tell a16reporter.17Q.In 1996 you told the Miami Herald that1819202122232425Judge Ross sexually abused you?A.After --Q.Is that yes?A.Excuse me.MS.NEWMARK
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THE WITNESS:11:54.You called, after I told you, after youwre screamingat me about why I wouldn'thave sex with you, you called your friendreporter at the Herald and said, "guess whatmy wife just told me."And then after youhad a long conversationwith a reporter onthe phone and discloseda marital confidenceto a reporter,then you got me in the car anddrove me to the Herald and walked me inthere, eight months pregnant with Tabby, andthen left me in a room to tell the reportersthe rest of the story.Andrtold it in sucha way that they would not write a story.Then you constantlythreatenedme afterthat, "if you divorce me, if you file forPage 517divorce against me, I'll go back to the18Herald".19BY MR. TOBKIN:20Q.Did you talk to Judge Ross about21sexually harassingyou?2223Ross.24A.Q.I have had conversationswith JudgeWhen was the last conversationyou had25with Judge Ross?CHOICE REPORTiNG SERVICEDade*BrOW3J"d ,. Palm Beach
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1A.Regardingthat subject matter, before IPage62ever met you.3Q.When is the last time you talked to4Judge Ross?5A.Probably late 1999, or early 2000, to6the best of my recollection.789Q.A.Q.Did you call him or did he call you?I think I called him.Did you want to talk to him about the10sexual abuse that he committedon you?11121314A.Q.A.Q.I can't remember why I called him.Did Judge Ross tell you to divorce me?No.Did you ever tell anybody that JUdge15Ross told you to divorce me?1617A.Q.No.Didyouever ask Judge Ross, list Judge18Ross as a referencein the last three years?191'1.In the last three years?I think when20you told me, go out and get a job, I had initially21put his name as a reference.Then I thought, nope,22that's not a good idea, becauseitwill just draw23attention to the newspaperarticles.24And I took it off, per Karen Amlong's25advice, who then said, Karen said, "put me down asCHOICE REPORTING SERVICEDade'*Broward •• Palm Beach
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.',I12345678910111213141516171819202122232425a reference".And I said, "but Karen, how should Isay I know you'? I didn't work for you."And shesaid, "tell them that I am your friend".Q.Did Judge Ross threaten you that if youever disclosed he had sex with you, that he wouldruin you?A.Yes, he did.Q.Did he tell you that he would screw offyour head and piss down your neck if you ever toldanybody?A.No.MS. NEWMARK:Again, why areyouraising your voice towards my client?THEWITNESS:I have never heard thatphrase before you just saidit.That'sdisgusting.BY MR. TOBKIN:Q.Were you afraid of Judge Ross and hispower?A.Yes.Q.Areyoustill afraid of it?A.No; because the damage is already done.Q.Did Judge Ross sexually abuse you?A.I think so.Q.Did I ask you before we got married,CHotCE REPORTING SERVICEDad*Broward;I
1why is Judge Ross calling us?Did you have sex2with him, ever?Pag 8345678910111213MS. NEWMARK:Again, why are youraising your voice towards my client?THE WITNESS:The period of time that Ithink you're referringto is when yoti werestanding behind me dictating and I was typingfor you, Judge Ross called my house, and you,as you always did, would demand "who are youtalking to on the phone," because I never hadany privacy on the phone.And I said, "myfriend, Judge Ross."Then you grabbed thephone and screamed at Judge Ross, some14threateningwords.15BY MR. TOBKIN:1617Q.A.Like what?I cannot recall, but I recall that they18were threateningin tone and words.19Q.Here's the question.Did I ask you20before we got married, did you ever have sex with21Judge Ross?2223A.Q.No, you did not.Did you deny when I asked you if you24had sex with Judge Ross, after we got married,that25you had sex with him, did you deny it on directCHOICEREPORTINGSERVICEDade*Browurd • Palm Beach
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1question.ing?Page 923MS. NEWMARK:Object to the form.THE WITNESS:You n.ever--4BY MR. TOBKIN:5678Q.A.For yearsYou never asked me that question.MS. NEWMARK:Object to the form.THE WITNESS:I divulgeditto you when91011121314151617181920I was refusing to have sex with you after youhad battered me, and I saidrwill not letyou touch me until you apologizeto me.Andyou said, "there must be something more.Youmust have been sexually abused".And I toldyou about a couple of instances.And then itfinally came out about Judge Ross.You never asked me if I had sex withJudge Ross, before we were married or duringwhen we were married.I divulged it to youunder pressure.I never meant to tellanybody.I was going to keep it a secret for21life.22BY MR. T08KIN:23Q.ISJudge Ross the only judge in the24courthouseyou've had sex with?25MS. NEWMARK:You have a constitutionalCHOICE REPORTlNGSERVICEDade*Broward'" Palm Beach
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1questioning?Page 923MS. NEWMARK:Object to the form.THE WITNESS:You never--4BY MR. TOBKIN:5678Q.A.For yearsYou never asked me that question.MS. NEWMARK:Object to the form.THE WITNESS:I divulged it to you when91011121314151617181920I was refusing to have sex with you after youhad battered me, and I said I will not letyou touch me until you apologize to me.Andyou said, "there must be something more.Youmust have been sexually abused".And I toldyou about a couple of instances.And then itfinally carne out about Judge Ross.You never asked me if I had sex withJudge Ross, before we were married or duringwhen we were married.I divulged it to you\under pressure.I never meant to tellanybody.I was going to keep it a secret for21life.22BY MR. TOBKIN:23Q.Is Judge Ross the only judge in the24courthouseyou've had sex with?25MS. NEWMARK:You have a constitutionalCHOICE REPORTING SERVICEDade*Broward*Palm Beach
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1234567right to privacy.You don't have to answer.BY MR.TOBKIN:Q.Did you have se with Judge Speiser?MS.NEWMARK:Again,you have aconstitutionalright to privacy.You don'tto discuss that if you don't want to.BY MR.TOBKIN:89Q.A.Did you have sex with Judge Speiser?I'm not answeringyour questions.Do10you want to tell about everybodyyou had sex with11before we were married?Do you?1213Q.Seltzer?Did you have sex with Judge Barry14MS. NEWMARK:Same objection.Privacy.15She's not answering.16BY MR. TOBKIN:18Speiser and Ross have sexually abused you?171920Q.A.How many other judges besides Seltzer, Ross and Speiser have sexually abused you None.21 2223BY MR. TOBKIN:24Q.Give me the name of one lawyer that has25turned you down for a job as a lawyer, becauseICHOICEREPORTINGSERVICEDade*BrOWllrd ,. Palm Beach
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1ruined your reputationconcerningJudge Ross.Give
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1Q.So the answer is, no lawyer ever turnedPage 122you down becauseI ruined your reputationregarding3Judge Ross?456789A..Q.A.Q.A.Q.That's not true.Give me the name then, please.It came up in conversation.Who?In a couple of interviews.Who?This is not McCarthyism.Give me10the names.11MS. NEWMARK:I would agree it's not121314McCarthyism,and on that note she's done,we're done.THE WITNESS:I cannot recall the exact15name of the law firm.I rememberit was in16171819202122232425Port Lauderdale.I can.not remember exactlythe name.And I do know that David Singeralso recalled it, but I cannot rememberexactly what was said.But there were references made like"Oh, you look familiar.Oh, yeah, you werein the newspaper.We saw you in thenewspaper".That's the type of referencer'mreferringto.CHmCE REPORTINGSEH.VICEDade*Bl"Oward*PalmBcach
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12(Thereupon the taking of the depositionPage 133was adjourned.)45678910111213141516171819202122232425CHOICE REPORTING SERVICEDad ,