Approximately two weeks ago (4/19/07) my client received news he was waiting to hear for the last 27 months - "not guilty". What was said by the trial judge presiding over the case was not what we would expect from a 16 year veteran judge who is also our Chief Criminal Administrative Judge. The Hon. Charles Greene is a pleasant man, bright, hard working, enjoys flying his airplane to help disadvantaged people (from all walks of life) and has been known to sentence defendants according to the sentencing guidelines.
Without addressing all of the jury trial details (you can order the transcript) the case involved five (5) African American victims/witnesses with another young African American victim who was also injured by a bullet which is still lodged under his arm pit.
After the verdict, and while the court's personnel were processing my client's paperwork, ASA, David Di Pietro and I approached the Bench/Clerk area to have the usual post-verdict casual conversation (off the record) regarding the case, shake hands, thank the trial ourt, etc.... when David and I enquired about the verdict. Judge Greene advised something to the effect "you know ... "NHI" . David and I both asked: "what does that mean?"The Judges response: " no humans involved". David and I then finished our conversation with the Judge. David is a good person, and a fine young lawyer. David and Judge Greene then discussed post-verdict/pre-trial/trial issues while I explained the in court release procedures with my Client, and spoke with his Mother and Sister. They did not hear Judge Greene's remark. April 19, 2007 was a Thursday.
The next day (Friday, April 20, 2007) I ran into Kevin Kulik (former ASA and current Defense Attorney) to discuss what "NHI" really means and its historical context. Kevin knew exactly what the slang phrase "NHI" meant because it was used by attorneys during the 1980s. I just happened to run into Judge willians in the courthouse hallway while discussing variuous unrelated issues with William Cohen and Charlie Levy. I was scheduled to appear before Judge Williams on the following Monday and wanted to speak with one of the ASAs assigned to his juvenile division regarding a Monday (4/23/07) trial. I did not know, and/or possibly forgot, he had recently been appointed by Chief Judge Dale Ross to head the newly created "Diversity Committee". I inquired as to the real meaning of "NHI". Judge Williams explained the true perception of that phrase and advised he would think about the issue over the weekend and get back to me.
On Monday afternoon (April 23, 2007) I arrived in Judge Williams' courtroom to address a non-jury juvenile trial and the judge requested my presence in his jury room to discuss the "NHI" issue. He advised he would meet with Judge Greene to discuss the comment, and we could all possibly meet to discuss my concerns. Judge Greene called me the next day wherein we had a brief conversation, and agreed to meet in his courtroom on Wednesday at 12:00 noon. On Wednesday (4/25/07) Judge Greene, Judge Williams, and I had a firm, but professional exchage of views, and we all agreed to continue the dialog. We learned about each others upbringing, background, and various life experiences. Well, unfortunately, the rumors started to fly, the jaab blog flood gates started to open, and Mr. Di Pietro decided to volunteer his views on Sunday, April 29, 2007. (without mentioning "the phrase")
Prior to April 29, 2007 I learned through kevin Kulik that Ken Podowitz, Steve Malnik, and Kevin saw David at Bravos (lunch time - April 25, 2007) where somehow David decided to share the "NHI" phrase with Kevin. I am not going to discuss the details because I was not there. Ask Kevin. This Bravos conversation occured during the exact date/time during my lunch time meeting with Judge Williams and Judge Greene.
I had a brief conversation with Howard Finlelstein in the courthouse hallway about the issue and learned/confirmed the true meaning of "NHI" from the perspective of a former APD, private practitioner, and current Elected Public Defender.
Unfortunately, I was unable to attend the April 30, 2007 Diversity Committee Meeting because I arrived at the 4:00pm meeting around 4:15pm at the "old courthouse" conference room on the 7th floor - which does not exist. (The Jaab Blog announcement was incorrect) The meeting was held at the North Wing (7th Floor) conference room. I did not receive formal notice to attend from the committee even though Minority/Ethnic Bar Lawyer Kathy Achille interviewed David on Friday, April 27, 2007.
Thus, this blog and a recent truthful response to a Sun-Sentinel Reporters questions. Thankfully, we still have the benefit of the First Amendment in the country notwithstanding illegal (warrantless) wiretaps, the so-called Patriot Act, and other recent governmental intrusions upon our liberties as american citizens.
Just a few observations before I conclude.....We live in the post-Imus world. Read the signs on the judges bench...something about professionalism and civility... nothing less will be tolerated. Would Judge Greene make such a comment if Chuck Morton was the prosecutor? How about if Johnny McCray, William Cohen, Charkie Levy, Lisa Stewart were the Defense Attorneys? I was born and raised in Broward County. I have never experienced such sarcasim, contempt, and downright nastiness than I have from our bretheren on the bench. I have contributed thousands of hours and dollars to variuos civic causes throughout Broward County, and have a vested interest in the quality if the judiciary, defense bar, and the Broward County State Attorney's Office.
I will continue to fight for what I believe is right and just, and willl not play into the courthose popularity game.
Remember Hurricane Wilma ? (New Orleans) "They" were not treated properly because the U.S. Government believed "no humans involved."
I do care if you are homeless, and elected official, Millionare or pauper - we are all human. Defendants, victims, witnesses, clerks, defense attorneys, prosecutors, in court deputies... the list goes on and on.
As attorneys we must vigorously and professionally attack the witnesses during trial. We do this within the confines of the rules of evidence and professional code of ethics. To do otherwise would constitute ineffective assistance of Counsel. Indeed, name one (1) instance where a judge allowed an asa or defense attorney to address a victim or a witness as "NHI". One blogger referred to me as a "tattle-tale". Well, if participating in an inquiry/conversation with a former ASA and BSO General Counsel (Judge Elijah Williams) constitutes me as a tattle-tale - so be it. Knock yourselves out ... the next group of "NHIs" may be your friend, a relative, neighbor, classmate, .... who happens to be born with the wrong skin color and has a case pending before a judge who is not thrilled with his or her appearance. Then what. It is just too late - your buddy or relative is toast.
Finally, I challenge each and every one of you to stop blogging anonymously (lawyers and Judges alike) and have the courage to express your true feelings regarding this matter. Take a stand .... you are an attorney for God's sake!!! We all must believe in true racial equality as applied to our constitutional rights.
It is simple, "NHI" is code for "black on black" crime. The "misdemeaner Murder" phrase has the same meaning. The terms are archaic and racist. We are all just as guilty as the people who use the phrase if we just sit idle - and say nothing. Silence permits the continued use of the phrase.
Trust me when I tell you the victim's injuries were human, the witnesses' time and energy constituted a human price, and the defendant's reaction to not spending the rest of his life in prison was very human.
How can we stand next to an African American Client, or and ASA advise an African American victim, if we cannot stand up against racial intolerance. The Due Process Rights of all human beings are compromised when we fail to acknowledge, and correst, our own prejudices while working within the criminal justice system.
I am not going anywhere. Please call me (954) 527-1092 or send me an e-mail at firstname.lastname@example.org regarding any questions or concerns.
As many of you know, there has been another incident involving a judge possibly making racially insensitive statements. I was not there, but the 17th Circuit's Diversity Committee (headed by Elijah Williams), is now involved, supposedly addressing concerns that Judge Greene may have explained a not guilty verdict involving a minority victim and a minority defendant as "no human involvement" (I guess he thought the defendant was guilty, and that the jury discounted the evidence because the participants were not very sophisticated people).
Please see the comments section on the previous JAABLOG post "An Onlooker's Tale" for background. In addition to the usual anonymous banter (anyone can post anonymously, just leave the field for "Name" blank, and it will automatically post as "Anonymous"), there is a thoughtful post by one of the witnesses, ASA David Di Pietro, explaining what he saw.
In any event, with the issue of our senior judges making insensitive statements raising it's ugly head again, I thought it was time to post an update on Chief Justice Lewis' aggressive follow-up to the meeting held in March between himself and the minority bar groups in response to Chief Judge Dale Ross' racially insensitive behavior at magistrates.
In addition to appointing Judge Scott Bernstein to Chair the statewide Diversity Training Subcomittee of the Standing Committee on Fairness and Diversity (previously reported on JAABLOG), Justice Lewis has written letters to Governor Crist, to Judge Silberman, Chair of the Judicial Qualifications Commission (JQC), to Judge Palomino, Jr., President of the Florida Conference of County Court Judges, to Judge Menendez, Jr., Chair of the Florida Conference of Circuit Judges, and to Judge Webster, Chair of the Committee on Judicial Evaluations (asking for a meeting to discuss valid judicial evaluations).
To Governor Crist:
"A concern was voiced...that persons selected to become judicial officers must have not only all of the necessary background academic in nature, but must also have the depth of character to absolutely exclude matters unrelated to the substance of the case presented, such as racial, ethnic, cultural, and any similar, irrelevant factor. I agree with this assessment and urge that this concern be factored into the exercise of your good judgment when potential candidates for judicial positions are to be selected."
To the JQC:
"A concern was voiced...as to a lack of information or full understanding of the JQC and its operation. Concern was expressed that things occur that may not be to the level of JQC action, but may still be wrong and escape review. I promised that I would ask you to meet with them to explore issues of concern and to seek a better understanding of the JQC..."
To the Circuit and County Conferences:
"Your Conference has sent a very strong and clear message rejecting my attempts to coordinate educational and other programs from a centralized point within this Court, but I again urge that your Conference recognize this area of concern and develop educational and other continuing programs to address these important issues..."
Please email me at email@example.com if you want copies of the full text of the letters. I find it interesting that, if true, it's another member of judicial administration that has stepped in it. How can our good judges restore the 17th Circuit to credibility if their leaders don't take diversity seriously and refuse to accept that times have changed? In any event, if this latest incident is true, some good may come, namely that Justice Lewis will hopefully be able to use the 17th as an example to push through his much needed reforms statewide. Thank you again Justice Lewis for your aggressive, proactive attention to this most important issue.
As to Ahearn's post, I didn't express a "gleeful tone" at the demise of the wheel. If it came across that way, I apologize. Really, I posted over many months trying to get the private bar on board, to stop the legislative train from steamrolling over the wheel, obviously to no avail (the idea that I started this whole thing in Tallahassee, through my attempts to stop the judges from going off the wheel wholesale, is, of course, as plausible as my picking up the phone and getting Governor Crist on the other end). I'm trying to find the silver lining here, and, beside possible contested elections, I think the private bar may get additional business since some defendants, no matter how wrong they may be, just don't want a PD, whether one of Howard's, or one of the new conflict PDs. I'll miss you Mike, I just hope your post wasn't another misguided attempt by some of your judge buddies, who hate this blog and the free flow of information, by having you write this illogical stuff in an attempt to discredit me and my true goal, namely (yup, here it comes again): STOP BROWARD FROM INCARCERATING NON-VIOLENT AND DRUG SICK OFFENDERS AT TWICE THE RATE PER CAPITA OF OUR NEIGHBORS PALM BEACH AND MIAMI-DADE COUNTIES.
To the glee of many on here this is my last post. Cancel my auther key.
It disgusts me Bill that the last paragraph of your post about the end of the Wheel almost has a gleeful tone. I guess the rumor is true you have a lot of family money so it makes sense, the loss of SPD income is no big deal to you.
I will be the first to admit the wheel system was not perfect. Maybe there were a few who did much better then the rest due to alleged corruption (still unfounded) there are hundreds of attorneys on the wheel that just got their appointments and did their job.
To those everyday lawyers who took what they got and played by the rules be sure to thank Bill for losing that money.
Bill used his crusade against Dale Ross, Howard Foramn, the ISC and the wheel systemt to generate press for himself at the expense of the everyday criminal attorney who just did their job.
I will not give Bill undue credit for single handedly bring the wheel down, but all the negative press he created started the wheel (no pun intended) moving.
Bill, you are so about the Defendants in the system. Do you really think this regional office system is going to be better for them? Are the defendants better off with attorneys having to do DUI's for $100 and Felonys for $500?
Personally, when the wheel came into being I shifted my practice to other areas so losing this work is not going to be a big hit for me. I feel bad for the criminal attorneys out there who are not political, did the right thing and now are losing their income. In addition to those attorneys at SAO or the PD office who could have used that income to help create their own law practices. For those individuals, read Bill's post, feel the glee he has that your are losing part of your business. Be sure to remember that glee he had in you losing your business when he runs for something or supports a candidate that sees it like he does.
Hey Conway, you are on here thanking JAAB for a place to write be sure to thank them and Bill now that you have lost your crimian and dependency spd's.
Don, you announced here you want to run for judge I hope you do it because you want to serve and do the right thing. Because as your frind Bill puts it, people will be running to make up for the income they lost. Is'nt that nice? Bill hopes for people to run for judge because they need the money not because they want to serve or citizens.
Rip me all you like hereafter, it does not bother me, I dont read this blog anymore.
I have more fun beating JAAB members in fantasy baseball anway.
The registry for conflict cases is dead as of October 1, 2007. Senate Bill 1088 is a done deal as of 10:59 this morning. Basically, the House and Senate conferees agreed to include 1088 as part of the state budget, which will be passed by both houses next week, and then sent to the Governor (see prior posts on JAABLOG for the decline and fall of the registry).
How will it work? There will be five regional conflict offices, patterned after the DCAs. Each office will have a Director, who will manage the attorneys and staff. The Directors will be chosen through application to the Supreme Court's JNC, in the same manner as the Directors of the CCRC have been appointed. The Director will earn $80,000 a year.
The regional conflict offices will handle everything from capital cases, all the way down to juvy/MM, dependencies, probate/guardianship, Marchman Act (sp?), etc. The Chief Judge of each circuit will appoint SPDs when the conflict offices have a conflict ("2nd and 3rd conflicts"), through the creation and management of a computer registry with statutorily mandated fees (about 10% of the total conflicts annually). What this means for Broward, with roughly 5,000 total SPDs last cycle, is that Ross and his successor will run a wheel for about 500 cases a year (this number is for criminal cases only). There is no slush fund for the Chief Judge to enjoy, and I imagine it will be a transparent registry, eliminating the need for constant public records requests. Lastly, the ISC's will be eliminated.
Boy, the times they are a changin'. This will have a huge impact, particularly on Broward, with its well documented history of abuse and shenanigans. Survival of the fittest for sure. On a positive note, let's hope this will help kick open the door to contested judicial elections. Maybe attorneys, absent lucrative SPD fees, may now find judges' salaries more attractive, and, since incumbent judges are finally out of the patronage game, attorneys will not have to fear a financial backlash if they stand up and run.
BUTTER KNIFE - DEADLY WEAPON: Coultas v. State, 32 Fla. L. Weekly D886 (Fla. 4th DCA April 13, 2007). S. Kaplan case. Cops stop Coultas for a traffic infraction. During the stop, the cop sees the tip of a silver knife sticking out of his front pocket. The cop takes the knife, which is a butter knife with a rounded edge with very slight serration. He arrests Coultas and search incident to arrest, the cop finds a fake driver’s license and stolen SunPass transponders. Coultas moves to suppress the evidence arguing that the cop did not have probable cause to arrest him for carrying a concealed weapon. The court agreed and found as a matter of law, this type of knife cannot be a weapon unless it is used in a threatening manner.
JURY INSTRUCTION - COERCIVE INSTRUCTION: Rubi v. State, 32 Fla. L. Weekly D887 (Fla. 4th DCA April 13, 2007). Murphy case. Jury deadlocks and Murphy reads the standard Allen charge. After, the jury sends out the following question: "We the jury, have the following question: One of our jurors is assuming and speculating on the evidence. Based upon his responses he is not following the law. The facts of the case is [sic] being said to not be factual and/or-and/or not conceivable." In response, Judge Murphy reads the standard instruction about how it would be a miscarriage of justice to not follow the law. The court found that Murphy’s instruction implied that the trial court agreed with the majority of the jury that the holdout juror is not following the law, and that it will be a miscarriage of justice if he failed to do so. The court further found that once the Judge gives an Allen charge, if the jury gives any indication that they are still deadlocked, the court must declare a mistrial without further instruction. Interestingly, this case is reversed even though the defense agreed to Murphy’s second instruction. This type of instruction is fundamental error.
BOND - HABEAS CORPUS: Narducci v. State, 32 Fla. L. Weekly D890 (Fla. 4th DCA April 13, 2007). The Defendant is arrested for two counts of lewd computer solicitation. At first appearance the magistrate set bond at $150,000 per count. Even though the Defendant had significant ties to the community, only had one DUI as a prior, was indigent, and never missed a court date, the magistrate found that based solely on the type of crime, there was no way to protect the public. The magistrate rejected the suggestion that the Defendant could be ordered to not use a computer as a condition of bond. The court granted the habeas and found that it is improper for a trial court to justify a high bond simply because of the nature of the charge. A court must consider all the criteria enumerated in the rules of criminal procedure when setting a bond.
Once there was a little seaside town called Broweird. It was a beautiful little town, but it was not a perfect place. There were once bad laws that stopped the people of Broweird from being together in public places, and laws that applied to some citizens and not to others.
Eventually, Broweird grew into a very big city indeed. The bad laws went away, and all kinds of different people ended up living there. They were good people of every stripe and color, but all was not well.
The main problem with Broweird was, strangely enough, its circus. It was the only circus in town, and it had been there since the days of the very bad laws indeed. The people of Broweird had no choice but to attend this circus, because it was the only place to go when they needed to laugh, and to cry, and to try to work out their problems together, when day to day life became too hard, and things went wrong.
The circus was run by the clowns, with their magical super clown powers. The head clown was a very old clown called Bozo. Bozo was a different kind of clown, the kind of scary and angry clown who liked being a clown for all the wrong reasons. He believed that clowns were like Roman Gods roaming the earth, and that no one should ever question clown motivations or behavior. He really did not believe that clowns were there to help people. Bozo had been the head clown for many, many years, long before Broweird became a big city, with so many different kinds of people. Bozo did not like change, and Bozo did not really care whether people enjoyed the circus, since he viewed it as his circus and everyone else could lump it.
All of the clowns were afraid of Bozo, because if they didn’t do what Bozo wanted, then Bozo and his friends, like his right hand clown, Sprinkles, who specialized in magical dirty tricks, would make their lives miserable and hurt their careers. Whatever Bozo wanted, Bozo got, without a peep from the other clowns, even if Bozo was completely wrong. Of course, the clowns were the ones who elected Bozo head clown year after year, by honking their clown noses in unison and stomping their clown shoes wildly for Bozo to see, and, in the end, they only had themselves to blame for Bozo’s actions.
The clowns did, however, derive many benefits from Bozo’s rule. They knew they could perform very badly indeed, and Bozo would always support them. They could say rude, insensitive things to the circus patrons, and Bozo would chuckle. They could be seen around Broweird, or anywhere in the world if they happened to be on television, doing the most un-clown like things, and Bozo would not care. They could even plot and snipe against each other behind their backs, and Bozo would feel more powerful. There were many, many scandals that were reported in the Broweird Times, the local newspaper, to the point that the people of Broweird lost confidence in their once respected and beloved clowns. Bozo never wavered, and he always had their backs, even when the mighty Supreme Commission was involved.
Bozo had many other ways to shore up support. If someone tried to become a clown himself or a bigger clown than he already was, then Bozo would call all his powerful circus owner friends and do everything he could to help a loyal clown realize his dream. If a clown had a friend or relative that wanted to become a junior clown, or if a clown had a relative that wanted to become a full fledged clown, then Bozo could make it happen.
Bozo was a very clever clown indeed. He knew, most importantly, that if the other clowns didn’t have to work hard, or if they could play the same role forever, they would continue to elect him head clown, no matter what. He made it so that his favorite clowns could pile into their clown cars at lunch time, and not have to come back to the circus, instead of having to perform shows or clown duties until 5:00 p.m., each and every day of the week. Some clowns didn’t even have to perform except for an hour or two a week. Even when there were many, many more people who needed to see the circus than could get in, Bozo always refused to make his clowns work harder or share clown work, even when the parking lot for the circus, where the people waited to get in, became overcrowded and dangerous for its attendants.
But all the blame cannot be placed on Bozo. Many of the clowns allowed the people of Broweird to be treated differently based on their appearance. They simply refused to remedy patent inequities with their super clown powers, as their brother and sister clowns in neighboring Palmland and Dadeland would do on a daily basis, at a preliminary clown show or during the main event itself.
For instance, most clowns did not take action when a distinct group of Broweird’s citizens were subjected to certain laws, and others were not, particularly the laws dealing with bad medicines. As a result, some of Broweird’s citizens were not allowed to ride their bikes at night without a light, while some could, without being searched. Some of Broweird’s citizens would routinely be searched for having dark window tint, while some citizens weren’t. Most of the clowns didn’t even care when certain citizens had their cars searched by dogs for traffic violations, while others did not. Some of Broweird’s citizens would be pulled over for minor traffic or equipment infractions, ordered out of the car (passengers too), and searched, while others would not be searched or stopped in the first place. Roaming gangs of police were assigned to target and raid some of Broweird’s neighborhoods, even breaking the sacred laws themselves, and most of the clowns would simply honk their noses in support. The circus audience itself became full of citizens who all looked the same, primarily because of these stop and search practices, day after day. And the clowns, even though they knew that citizens of every color and financial background were involved with bad medicines, and who were looked up to by the people of Broweird for answers, mostly kept on performing just the way Bozo and others liked it, seemingly without a care in the world, while the prisons overflowed with certain members of Broweird’s community.
How did things get so bad in Broweird? Bozo and Sprinkles were a big factor, of course, doing all they could to stop the flow of information to the general public and stifle independent, creative clown thinking and leadership. New clowns looked up to Bozo or the clowns he assigned them as mentors, who, of course, were chosen in his own image of what a clown should be. Most of the clowns dutifully followed his will, whether spoken or not, despite the fact that his leadership was unquestionably flawed. The other circus workers also were afraid that Bozo and the other clowns would use their super clown powers to destroy their careers or their friends, so no one dared to stand up and shout "this circus stinks!" Things got worse and worse and worse. The Broweird circus was run by fear and intimidation.
Meanwhile, the people of Broweird, who had grown into a diverse, multi-ethnic community, had to endure this miserable show, even though their clowns no longer reflected the makeup or desires of the community. All the clowns, for the most part, still wore white makeup, just like when the laws were very, very bad in small town Broweird, all those years ago. The citizens of Broweird needed and wanted clowns who wore green, red, yellow, and blue makeup, just like they did, who cared about their problems, yet the people who picked the clowns, and most of the clowns themselves, just didn’t seem to care. And the irony was that the citizens who wanted multi-colored makeup now outnumbered those that wanted only white makeup!
Things continued to get worse. Many citizens had been stripped of their rights, and their voice was no longer heard. Most of the other citizens never knew what was going on at the circus, because they managed to stay away, and because the process to make new clowns was a top secret enterprise. More scandals were reported in the Broweird Times, more investigations by the Supreme Commission followed, yet nothing changed. Cynicism and anger multiplied. The good, caring clowns, who believed in the sanctity of their profession and their mission, were ostracized and punished. They were afraid to speak out. And it was a very dark day indeed in Broweird.
And then, one day, with hopelessness at its peak, as has happened so often throughout history, a miracle happened. For on a bleary Monday morning, when all the clowns were gathered and performing their mostly bloodless, passionless show, a great, mystical wave rose from the sea and hung, suspended, above all of Broweird.
The wave hung in the air for what seemed like an eternity, so that all the children, parents and living things could marvel at its majesty. They waited and watched in silence until, with every eye gazing peacefully upward at the magnificent force of nature that could swallow them all, the wave shot upwards toward the heavens and then back down towards earth, narrowing itself into a fine funnel that focused the sea’s pure waters only upon the circus. There were gasps and hollers, and cries and tears, not from pain or sorrow, but from release and joy.
With the waters pounding down from the heavens, a curious thing happened. For as the sea cleansed the circus, all the clowns were drawn together in a circle and compelled, as if by divine intervention, to hold hands. Even Bozo and his henchman, Sprinkles, joined the circle. And they all watched each other’s faces as the waters cleansed the years of caked on white make-up, revealing glorious shades of green, red, yellow, blue, brown, silver, and purple, together with every other color known to man. It was then they realized what they should have known all along, that they were all the same underneath, part of the same human family, a human family that depended upon the strong helping the weak, the smart helping the less educated, and the fortunate helping the less fortunate, in order for all to survive and thrive and grow as a community.
The End/The Beginning/The Middle