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Saturday, June 30, 2012

Legal News Dominates

  This week has seen a huge slate of legal related news on both the local and national levels.  I guess the biggest news would have to be the Supreme Court's - SCOTUS on the news wires - ruling on health care.  Chief Justice Roberts showed his concern for the legacy of the Court and his tenure as Chief with his ruling that literally split the baby, Solomon like.  He stood for the supremacy of the legislative process in our scheme of government by siding with four justices in saying that the "individual mandate" was a tax and within the constitutionally established powers of Congress.  He crossed the road and stood with four other justices and made certain everyone understood the same "individual mandate" was not within the scope of the Commerce Clause and therefore did not meet constitutional muster.  While that may seem inconsistent to both sides of the aisle if you read some of the better respected legal minds from academia you can see the importance and distinction in the positions the Chief Justice took.  He literally upheld the constitution in its basest form and allowed the legislative branch its due while telling it, on the other hand, it had gone too far.  From a purely historical and legal point of view justice was done.  The Chief Justice is to be commended for that!

  Locally the first two days of a suppression hearing culminated Friday with one of the world's most respected authorities regarding the mental processes and abilities of children telling Judge Cooper, and the world, why Christian Fernandez could not have understood or exercised his rights when he was questioned by the Jacksonville Sheriff's Office.  Having been around the legal system in Northeast Florida for longer than I care to admit I have to sit back in admiration when I see the names Hank Coxe and Buddy Schulz mentioned in the same article.  When you realize they are on the same team and standing between the child and the massive State you know there have to be some serious issues being batted around for lawyers such as them to be stepping to the plate.  The Assistant State Attorneys are good lawyers, well experienced and respected.  But, we are talking true Hall of Famers with Coxe and Schulz!  You can read the blogs and comments all over and hear all the nastiness people vent against the bar, Judges, the law and lawyers in general.  But knowing that the pezzonovante are looking the Honorable Angela Corey in the eye and saying no to prosecuting twelve year olds makes me proud to be an American, a Floridian and a lawyer.  Thank you Messrs. Coxe and Schulz.

  Semi-locally, at least from the point of view of the prosecution, George Zimmerman dominated the cable channels Friday with the newest attempt to get him out on bond pre-trial.  Judge Lester may have been rightly upset that Mrs. Zimmerman had allegedly lied about the monies they had access to when she testified.  But just as the sins of the fathers are not that of the sons, the lies of Mrs. Zimmerman have no more impact on the bond criteria for George Zimmerman than I do on the path of the sun through the daytime sky.  Is George Zimmerman a danger to the community?  Other than the pending charge and some minor scrapes a few years ago there is nothing to suggest he is a man to fear.  Is George Zimmerman a flight risk?  Not only no, but hell no!  He was told by Mark O'Mara, a man who appears to be a true lawyer of respect, that he had forty-eight hours to surrender and return to jail.  He was in an unknown location, had two days and some funds and still did the right thing.  He surrendered and has been in custody for the better part of June!  George Zimmerman is not a flight risk and is willing to exercise his constitutional right to trial.  He needs to have a bond set that is not punitive in nature and secures his appearance in court.  Hopefully, Judge Lester will do the right thing next week and set a reasonable bond.  This case needs to proceed and let the legal process work like it was prior to the introduction of public pressure and politics.  The interference of people with little or no knowledge of due process and local rules does not bode well for the appearance or achievement  of justice.

  All three of these issues were media circuses in their own rights - emphasis on the circus.  The Solicitor General had been chastised, ridiculed and parodied over his performance during the three days of argument earlier in the year.  Where are the accolades for him now that his narrow argument regarding taxation carried the day and captured the support of the Chief Justice in doing the constitutionally correct thing?  Thank you Geoffrey Toobin for admitting your short comings and jumping the gun, now tell your colleagues in the media to belly up to the bar of public scrutiny and admit their errors.  Politics will now set in to dominate the issue of national health care.  Sadly, the other two will continue to suffer the three ring atmosphere that has cast doubt on the integrity of our system of justice!

Thursday, June 21, 2012

Deficit Budgets

  How do you run a deficit budget three years in a row?  If you are Tim "Hooha" Poynter and his prior fellow members of the Fernandina Beach City Commission you simply ignore fiscal responsibility.  Now there are rumblings of an additional deficit budget - one where we draw down the reserves or emergency funds - and no talk of salary cuts or other budget restraints.
  The city has enough take home vehicles to create its own traffic jam on our underused downtown streets and byways.  Where are the plans to stop that?  Even with the price of gas dropping it is simply too expensive to have everyone and their assistant driving city cars.  Why are the people who have allowed us to be drawn into law suits, overspending and overpaying still drawing their high salaries.  Their love for this community should be exhibited in assisting with the belt tightening!  If there is no love, then there will be no love lost with their departure.
  We have borrowed a whole lot of money - $1.8 million - for discretionary spending.  Opening of another railroad crossing that will benefit few, one being "Hooha" himself and his businesses.  It wasn't bad enough that he used the city parking lot at 2nd and Alachua for a private staging area for the recent improvements to his new enterprise, now he wants us to pay to open another crossing.  At what expense to the taxpayers?  The payments on the loan are approximately $12,000.00 a month of our tax dollars.  The money was borrowed quickly after the November elections to prevent the newly elected commissioners from putting the halt to it.  That money has been largely untapped since then to the tune of $72,000.00 so far this year.  But "Hooha" didn't want to expend $13,000.00 to celebrate the birthday of the greatest country yet known!
  The double talking about fiscal responsibility and fiscal restraints sounds good at the end of the Commission meeting but doesn't ring true when held up for evaluation against the prior actions.  "Hooha" has been willing to mortgage and spend our future, especially when he benefits, but not when the community as a whole does.
  We need people who will be stewards of our resources not protectors of their own interests.  People need to let the Commissioners know!

Tuesday, June 19, 2012

Talking Heads

  As a lawyer in a small town you are often greeted with questions about the seemingly endless high profile cases that find themselves in the news.  Everyone has a question, if not an opinion, as to what, why and how things occur in the criminal justice system.  It is easy to opine about things but not always smart.  The larger cities are worse so the news channels seek out lawyers to comment live on TV and radio and in the print media.
  All court personnel are insiders, so to speak, and have jaundiced views of what goes on in a courtroom.  It doesn't mean they are correct or have sufficient knowledge to offer an opinion - but many do.  Too many, in my opinion!
  Very few people have the luxury of knowing enough of the inside dope on a case to form an intelligent and well thought out position on many of these cases.  Personally, I have always told lawyers if you are going to try a case you need to pick your jury so that you can talk to them.  Too many young lawyers, prosecutors mostly, want someone else to pick the jury for them because its intimidating to talk to people in a courtroom and not have everything orchestrated for your own comfort.  The same applies to the position of "talking head" offering opinions on something with which you have no involvement and limited knowledge.  It is really easy to say something but it's not always easy to say something intelligent.
  Like facing a knuckleball pitcher you can talk about how far you would smack that floating balloon until you step into the batter's box.  The scenario changes drastically when it's your behind on the line and that pea sized ball heads this way and that as it makes its way to the plate.
  Lawyers need to stop and think about this sideline commentary that is becoming all the more prevalent on the various news and cable channels trying to fill air time.  They aren't Howard Cossell offering observations on a quarterback rolling out to throw a pass.  The courts and people's rights are not a game up for color commentary and interesting asides about someone's stance or swing or evasive run with a ball.
  The various bar associations are responsible for this, indirectly, when they allowed all the advertising and puffery that accompanies the unsightly commercials that are aired and the billboards that pollute the major intersections.  No one could have ever imagined it would go this far but it has!  Murder trial as sport.  Judge Judy and Joe Brown and the now countless others that have friends litigating against friends over spilt milk.  While being seen with the popular host of a TV newscast may meet the requirements of Marketing 101 it falls far short of what lawyering should be all about.

Sunday, June 17, 2012

Father's Day

  My day began with attending church with my wife and daughter.  Wonderful way to begin and with my two favorite people in the whole world.  Later drove into Jax to see my much older brother, two brother-in-laws and, most importantly, my father.  A perfect day!
  I tell people my siblings and I are the most blessed people on earth.  Eleven short days and our mother will turn 91.  Thirty-one days later and our father will be 92.  Their health fluctuates, as you would expect, but by and large they are in excellent shape and still live on their own.  Spending time with them is an added bonus to any trip to Jax and hearing their input on the various topics of the day often manages to surprise me.  Politics, war, religion the topic is unimportant.  But, when filtered through their years of life and the exposures the Greatest Generation have had it is usually pretty well founded.
  I only wish everyone could have their parents so long and in such good shape.  Each day is an added blessing that so few of my peers have.  God bless them one and all, our parents!

Friday, June 15, 2012

Fernandina Friday Nights

  Downtown is hopping!  It is like days of old with people everywhere.  The Bookloft had people of all ages perusing their shelves.  The ice cream shops had lines blocking the sidewalk.  There were people in their later years along with families with toddlers and strollers and fathers walking out with children in their arms and a cup of ice cream in their hands that they couldn't eat.  Every restaurant was packed, not busy, packed!
  The police department has returned its presence on Centre Street and downtown with an officer riding a Segway and engaging locals and visitors alike in pleasant conversation.  I hope the city commissioners see this.  This is what the tree lights was all about.  Its not about twinkling and us versus them attitudes.  Its simply about the charm of an old seaside village with a lot of history - some hundreds of years old and some just decades.  Its not change for the sake of change, looking modern or a new idea because the old is, well, just old.
  Fernandina is a place where families can visit as families.  They don't have to worry about what their children will be exposed to on the street.  Loud partiers imbibing past the point of propriety and acting out in ways that are offensive are not the norm here.  The presence of a law enforcement officer will once again deter the unsavory behavior that had started to show its ugly face again.
  The beach is the day time attraction and the restaurants and book stores and gift shops and ice cream shops are the evening and after dark attraction.  Fernandina is a welcoming community that likes people of all ages and accommodates many different tastes.  It is the proverbial old shoe, comfortable the minute you slide in and lends an air of relaxation and relief from the run amok society we have become.
  You put politics, religious differences and hustle and bustle aside to just settle in and enjoy life like it used to be.  Without leadership that focuses on quality of life we will lose that as so many other communities have.  We don't need massive debt, government that can't pay its bills and self serving elected officials who see nothing but the green of American dollars as their driving force.  Those attitudes will kill our community faster than the economic downturn did the housing industry.  One shopkeeper shared the upswing in business as her hopes of a good sign for the return of our national psyche and local interests especially.
  As a retired Judge used to say to visiting lawyers - Welcome to Paradise!

Wednesday, June 13, 2012

The Perils of Flying Solo

  The grass is always greener when you look across the fence.  I have been flying solo for too many years to count and it has had its many blessings but weeks like this are the ones that make you pause to reflect.
  Return from the FACDL annual meeting which was, as always, very good and helps to recharge the batteries.  A trial set in Jacksonville...oops!  No go this week but maybe next.
  Tuesday pre-trials, a couple of old cases finally closing out with negotiated dispositions and two DMV hearings - both set with out any consultation to my calendar, the first at 9 the second at 11.
  Make it through chambers, go over plea agreements with all three clients and brief my client on the workings of the Kangaroo Court known as Administrative Review.  Only problem, no hearing officer and no trooper! Try to placate my client and family for a few minutes and then find a JA who calls to find out they have continued the hearing with little or no consideration for my schedule or my client.  And, by the way, forgot to call and advise they weren't going to make the courthouse but they did leave a message on voice mail at the office that wasn't scheduled to open until nine.
  Meet with a prosecutor over a new case during the down time and return for the 11o'clock hearing.  The same deputy who had previously requested a continuance just decided not showing was a better option.  An entire morning wasted with little or no ability to accomplish anything positive for my client.
  Grab lunch with two friends and, nightmare of all nightmares, break a tooth.  Return to my office with an ache that makes life miserable only to find out a construction crew on property behind my office has severed the phone lines.  No phones, fax or internet and a jury selection set for this morning, Wednesday.  Get in to see my dentist - thank God - then back to pre-trial my client.  Jury selection at 8 a.m.
  Jury selection goes well, brief recess and opening statements at 10.  New prosecutor who had not filed the case, knows little or nothing about it and probably her first trial.  Senior lawyer there at her side she tells the jury about evidence never disclosed and statements never recorded or disclosed at any point.  My motion for a mistrial was opposed by the senior lawyer and the Judge says he'll do the Richardson hearing.  It lasted about thirty seconds before he began scolding the senior lawyer and said the mistrial was the only option.
  Tomorrow brings a schedule full of appointments to make up for being out of town at the FACDL soiree and then in a trial and without phones on top of it.  Makes you wish for two or three partners to spread the wealth along with the agony.
  Despite the carping wouldn't trade it for the world.  Love being a criminal defense lawyer, love sitting there next to a client fighting to keep his CDL and truck driving job so he can continue to support himself and family.  The greatest job in the world - most of the time.

Sunday, June 10, 2012

  Just returned from Naples for the 25th annual meeting of the Florida Association of Criminal Defense Lawyers.  The foresight of those men and women who stepped forward in 1987 has paid off in spades with the status of the organization within the system, the recognized professionalism of the criminal defense bar statewide and the camaraderie of mostly individualists who defend the constitution daily for different reasons.

  The willingness of the experienced lawyers to stand up and give away their hard earned knowledge is admirable.  Probably not common in other workplaces but truly the standard for the Florida defense bar.  Lawyers famous for recent victories discussing the ins and outs, for all to hear, of the travails of trying high profile cases.   Telling other lawyers, young and old alike, how to swim against the tide of public opinion fueled by a media onslaught that may have predetermined a verdict without the full story only available to a jury.  IT professionals lecturing mostly tech illiterates on the developments of electronic equipment and services to make our lives better.  Having started off as an office boy - runner is the preferred modern term - when libraries took up whole floors of high rise buildings in downtown Jacksonville I am still amazed at how much info is at your fingertips without leaving your desk, keyboard and monitor.  Also amazing is the chasm that exists between the old plow horses of the profession and the new young thoroughbreds when it comes to technology.

  Like the big legal news throughout Florida of late, the stand your ground law was a major topic of discussion.  Lawyers who have litigated the same issues facing Mark O'Mara as he defends Mr. Zimmerman were there to tell all- the good and the bad - of what you face with the courts, the prosecutors and public opinion.  When the legislature passed this law a few years back it wasn't seen as anything other than a codification of the right to defend oneself.  The talk then was it extended the "castle doctrine" that lets us do what is necessary in our homes when danger is at hand.  Few complained and the NRA and other conservative leaning groups led the charge with Representatives and Senators who already leaned their way.  A tragic chain of events leading to the death of a teenager combined with the hype of Al Sharpton and the marketing savvy of someone has pushed this issue to the point where a fair trial may never be had.  Now there is a statewide panel set to review the law and what changes may be necessary - politically that is - to soothe the angry crowds.  Mob justice is an oxymoron! The criminal justice system works and works well until outside entities with little or no experience with the process try to force a wanted outcome.

  I was fortunate to learn many things in my three days down south.  The sharing of knowledge is worth the trip alone.  The realization that this part of Florida is truly God's country was reinforced once again and maybe the pearl of the entire lesson.  Glad to be home!  Glad all over again to be a part of the best segment of the legal profession!