JUSTICE BUILDING BLOG

WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM. Winner of the prestigious Cushing Left Anterior Descending Artery Award.

Wednesday, January 04, 2006

PROSECUTORS BILL OF RIGHTS

WE RECEIVED THIS POST FROM A PROSECUTOR (ALLEGEDLY) WHO SENT FROM AN EMAIL ADDRESS ENTITLED SPIDERMAN.

THANKS SPIDEY!

(WE'RE TRIAL LAWYERS TOO, LESS $$ AND EXPONENTIALLY MORE TRIALS)

1) To not have to listen to whining about "Mr. Green" if the case is a year old and the defense attorney hasn't tried a case since the invention of the wheel. I empathize with your plights to pay bills, but get SOME money up front and/or have a payment plan that's not set up like a 30 yr mortgage.

2) To not have plea negotiations go like this:

DEFENSE: CAN MY CAREER CRIMINAL CLIENT HAVE A 10/20/LIFE WAIVER?

STATE: NO, SORRY.(5 minutes pass)

DEFENSE: CAN MY CAREER CRIMINAL CLIENT HAVE A 10/20/LIFE WAIVER?

STATE: I'LL LOOK INTO IT IF U STOP BOTHERING ME.(30 minutes pass)

STATE: I GOT THAT MIN MAN WAIVER FROM 10 DOWN TO 5.

DEFENSE: SORRY, MY CLIENT WANTS PROBATION ON THAT ARMED ROBBERY.

3) To be treated with respect and as a peer. Know this: the bar exam requirements are SIGNIFICANTLY more demanding now then when some of you that claim decades of experience took it. These kids are much smarter than you per capita.

4) To not listen to furlough requests, ever.

5) To not have depositions set without coordination with us! See FRCP 3.220(h), some folks may learn something. You HAVE to call us first...

6) To not have the term "prosecutorial misconduct" cavalierly thrown around on the record.

7) And lastly, for those members of the defense bar that never wore the white hat in this county, to understand what it's like to be us...First of all, some of us suck, meaning, some of us just can't step back and embrace the big picture...i'll be the first to admit it. But most ASAs are bright and really buy into the mission. Unfortunately we have to deal with: 42 different municipalities/departments/S.O.P.'s, a police union that does not like our boss, an administration that instills fear in ASAs to C.Y.A. instead of pursuing the right result, judges whose campaigns we can't afford to donate to, budget crunches, a functionally retarded support staff, the pressure of figuring out how we're going to pay our rent AND eat this month, jurors that watch too much CSI instead of graduating high school, victims and witnesses that have worse priors than your client, and more cases than can be managed. We can't just decline a case or hire another attorney if we get too busy. We just sack up and do our jobs. So if we don't return your phone call the same day, stop calling our DC to complain! ...

I'm sure this is not my last rant, but the blog is a great call Rump, keep fighting the good fight.


Rumpole Responds: THAT WAS A GREAT GREAT POST. We were smiling when we read it. We say this as a defense attorney: Most of your points were right on the money. We have seen the problems you said and agree with you almost 100%.

However, outside of some DC’s who have good secretaries, it is difficult to get a return phone call to schedule depositions, but there should be a renewed effort on both sides to call to schedule matters at mutually convenient times.

With regard to Mr. Green- you are correct. That should never ever be mentioned in court. Part of being a defense attorney is also being a business person, and neither the court nor the prosecution should have any interest or concern about a fee when handling a case. Defense attorneys are inviting more trouble then they want or need if this becomes an issue in state court.

Prosecutorial misconduct should be mentioned in court as often as defense misconduct. Only when it truly is relevant to the case. In our entire career we do not ever remember raising that issue in court.

Mr. Spiderman: can you confirm or deny whether or not all ASA’s have internet access in your bustling office?

Finally, Spiderman, what's your position on the Prosecution rescinding plea offers if the defense takes depositions? We are not talking about the deposition of a complaining witness in a sex crimes case. That has always been a standard policy of the SAO for good reason. But we are now seeing it more and more in every day type of cases, and we believe it is 100% WRONG. Care to comment?

See You In Court [ or at a scheduled deposition].

5 comments:

Anonymous said...

We agree!!!

Anonymous said...

Internet is only available to DCs or higher, confirmed.

Depos and suppression motions are part of the process and a defense attorney and/or his or her client should not be punished for pursuing them...as long as they are legit. Having a blanket rule regarding regarding pleas, depos, and/or Arthur Hearings is contrary to seeking the right result.

Anonymous said...

Rumpole...

British Cheques in Euros? I thought the British pound was still going strong?

Anonymous said...

YOU ARE CORRECT IN SAYING THAT MOTIONS AND DEPOSITIONS ARE APART OF THE PROCESS.. HOWEVER, WHY WOULD YOU OFFER SOMETHING LOWER ONCE YOU HAVE ALREADY WORKED UP THE CASE... THAT MAKES NO SENSE..

Anonymous said...

Not to switch gears or anything, but I can't let a couple of those comments pass. Coordinating depos is something that I always try to do. Perhaps the failure to get notice or my messages is as a result of your staff -- you acknowledged that their skills leave something to be desired. I usually have my secretary coordinate with the ASA's secretary since trying to reach an individual asa, get him on the phone, and coordinate a depo is incredibly time-consuming. Especially when you consider the fact that an ASA attending a depo is something that occurs only slightly more frequently than a lunar eclipse.

As far as furlough requests are concerned, lets try to keep in mind that "defendants" are human beings, some of whom have families and people who depend on them. Some of the requests are obvious bullshit, but is is so unbearable that you can't even sit through the request? One thing ASA's need to understand (and Judges too) about being a defense attorney is that sometimes you have to play a role and ask for something you know you're never going to get, something you wouldn't even grant if you were the Judge. You do it because the client, who has everyone arrayed against him, wants to believe that someone is in his corner and is looking out for him.

As far as Judge's and campaign contributions are concerned, I guess your suggestion is that they look after defense attorneys. In my experience, the best you can hope for as a defense attorney is a fair judge. ASAs seem to think that anyone wearing a black dress who doesn't sentence like Judge Glick and who is not actively assisting the prosecution is defense oriented. Its nonsense. When was the last time you saw anyone win an election with the slogan that they're going to protect people's constitutional rights? It doesn't happen. Anyone who runs for office, Judges included, wants to be perceived as tough on crime. And what about what happens at the end of a trial when the defendant is found guilty by one of these Judges we've been giving money to? Has anyone, following a trial, ever gotten a better sentence than the offer? Surely there must have been a trial one time where, after hearing the facts of the case, the Judge said "golly, that really wasn't as bad as the a-form made it sound. That offer really was too high." If that has ever happened, I've never heard of it. On the other hand, I've had clients who were offered probation if they'd plead to multiple felony counts, who went to trial and were found guilty of a misdemeanor, and who were sentenced to the max. I had a client who was offered probation, went to trial, was convicted of a first and second degree misdemeanor. The Judge gave the kid 364 and 60 days. Consecutive. Those darn defense oriented Judges.

It pisses me off to no end. Defendants are punished harshly for going to trial. The law says that a judge cannot punish someone for exercising his right to a trial, but they do and we all know it and we do nothing about it. I understand that the system would break down if everyone went to trial and that there has to be some incentive for plea bargaining. But Judges who automatically max people out without a thought or a care are a disgrace and should not be sitting on the bench.

Lastly, as far as your complaints about your caseload and so forth is concerned, keep in mind that we have to run offices, pay staff, market ourselves, bring in business, collect fees and appear in front of different judges in different courtrooms, different courthouses, and different cities. I got paid jack shit as a PD, but in retrospect, I should have had no complaints about the work load.

On your other points, I agree. Prosecutors should be treated with respect, and I do. That's my nature, not to mention the fact that it is good for my client.

Trying to continue a case because Mr. Green hasn't shown up, and the case is a year old is inappropriate.

There are lawyers who throw the phrase "prosecutorial misconduct" around pretty liberally. Its not right, but everyone knows who these people are and they have no credibility.