SUPREME COURT NEWS: Today, the supreme court issued an opinion amending the rules of criminal procedure to give the state "the sandwich" in all cases.
UNCOUNSELED MISDEMEANOR PLEA - VIOLATION OF PROBATION: Johnson v. State, 32 Fla. L. Weekly D957 (Fla. 4th DCA April 20, 2007). Holmes case. Johnson is on probation. He gets arrested for a misdemeanor and gets time served at magistrate. Holmes violates his probation based on the conviction. The court held that an uncounseled plea to a misdemeanor cannot be used to violate a person’s probation. The Defendant has the burden to show that he pled to a charge that carries a potential penalty greater than six months or actually served time for the offense; that he was indigent and entitled to counsel; that counsel was not appointed; and that there was no valid waiver. Once the Defendant alleges these facts, the burden shifts to the state to show that counsel was provided or that the right to counsel was validly waived. The state did not show this; therefore, order revoking probation is quashed.
MIRANDA WAIVER: Benitez v. State, 32 Fla. L. Weekly D968 (Fla. 2d DCA April 20, 2007). There are two issues involved in deciding whether a Defendant executed a valid Miranda waiver: 1) Whether the waiver was voluntary. To this issue, a persons diminished capacity and improper coercive police conduct are relevant. 2) Whether the Defendant knowingly and intelligently waived his rights. This involves a five prong analysis: 1) the manner the warnings were read, including any trickery; 2) the Defendant’s age, intelligence, background and experience; 3) whether, if it is a juvenile, parents were contacted and given an opportunity to speak with the defendant before questioning; 4) location of questioning; 5) whether there is a written waiver.
IMPROPER OPINION AS TO GUILT-IRRELEVANT GRUESOME PICTURES: Conner v. State, 32 Fla. L. Weekly D983 (Fla. 2d DCA April 20, 2007). Defendant is charged with DUI manslaughter and vehicular homicide. The state’s theory was that the Defendant veered into a bicycle lane killing a bicyclist. The defense’s theory was that the bicyclist left his lane and crossed into the Defendant’s lane. First, the court held that the investigating officer, who was not qualified as any type of expert, improperly gave an opinion that Defendant was guilty when he answered yes to the question: "And is it your opinion that the defendant’s impairment contributed tot the crash and tot the death of the victim in this case?"
Also, the pictures of a dead body after being run over by a car can be particularly gruesome. The state introduced these pictures to show that the impact occurred in the bicycle lane. If that were true, the pictures would have been admissible. But the pictures did not depict where the body was found. Gruesome pictures may be admissible if they are relevant to an issue in dispute. Not relevant to any disputed issue in this case, they were inadmissible because they were more prejudicial than probative.
BOND - HABEAS CORPUS: Hollander v. Crowder, 32 Fla. L. Weekly D985 (Fla. 4th DCA 2007). Improper to set a bond based on a standard schedule. A judge must consider all the factors listed in the rules of criminal procedure when setting a bond.
|credibility gap |
In the eyes of the law
Whatever the cause, the buck stops with Chief Judge Dale Ross. He must take steps to repair Broward courts' tarnished image caused by errant judges or make room for a leader who can. The latest gaffe comes from Criminal Administrative Judge Charles Greene. After a jury delivered a not-guilty verdict in an attempted first-degree murder case in April, the judge made a remark that court insiders link to minorities and others considered less than equal in the eyes of the law. The case, which involved a black defendant, black victims and a black witness, is an ''N.H.I.,'' Judge Greene told lawyers.
''N.H.I.'' is shorthand for ''No human involved,'' a phrase from the 1970s used to describe why some crimes against prostitutes and gay and black victims were not pursued as vigorously as those against white victims. On Monday Judge Greene lamely explained that he was describing how the jury regarded a witness' testimony. That doesn't wash, coming from a seasoned criminal-trial judge in a justice system known to have its biases on occasion. Later, seeing the harm this insensitive comment could do to criminal courts' credibility, Judge Greene asked to be reassigned.
Before this incident, there was Circuit Judge Lawrence Korda's request to be reassigned after he was arrested in a public park for allegedly smoking pot. Also, there was Circuit Judge Larry Seidlin's media-inspired melt-down while presiding over proceedings to decide where Anna Nicole Smith's body would be buried. Circuit Judge Cheryl Alemán is fighting misconduct charges for alleged mistreatment of attorneys and defendants. And Judge Ross did himself no favor when he pleaded ignorance last year to the practice of some Broward judges to conceal court cases on secret dockets. The Florida Supreme Court subsequently barred use of secret dockets.
After several Broward judges were accused of making racially and ethnically offensive remarks, Judge Ross last June ordered all judges and magistrates to attend sensitivity training. Some balked, which doesn't reflect well on his authority. Judge Ross took the course, but still made sarcastic comments about Hispanics and rap music at a March hearing. Hello, Broward judges: This is the 21st century in diverse South Florida. If you can't handle these realities with respect and dignity for all, get another job.
Channel 10 is doing a story tonight on the Greene fiasco. This thing is heating up, since it turns out that many people outside of the Courthouse bubble find the comments he made to be truly disturbing. I imagine this is why he acted so quickly to bow out of criminal, to his credit, although I know there is still a lot of controversy brewing as to whether he should be allowed to preside over civil matters involving minority or non-wealthy litigants.
I, for one, don't think Judge Greene to be a racist, but, as I pointed out in the Diversity Committee meeting before Judge Williams, I do find his comments to be cynical to the point that it's obvious something is very wrong with his thinking (also - as a neutral arbitrer, why did he even care what the verdict was anyway?). Are our criminal judges all this burned out? Is that why there are so many "insensitive" invectives hurled about from the bench?
Criminal judges, no matter how well intentioned, are human beings, and they suffer from burn out, just like everyone else. The question is, why do we have the same judges sitting on the criminal bench year after year? Why aren't they all rotated on a regular basis a la Palm Beach and other counties? Is this an example of political considerations creeping into judicial administration's thinking instead of doing what's right for the health, welfare, and smooth operation of the criminal justice system?
In any event, check out Channel 10 tonight, if you're interested. I commented on the need for rotation of the judges and the lack of leadership here in Broward, and that, in my opinion, Judge Ross should be thanked for his public service and removed as Chief Judge, since this is one ship that can't afford to go down with it's captain. Let's see what makes the air, and what ends up on the cutting room floor.
Aleman Again Asks For Dismissal Of Charges:
Guilty Verdict BSO Exceptional Clearance Trial:
Prosecutors and PD's Struggle With Debt:
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 email@example.com 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 firstname.lastname@example.org 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.