YOU MAKE THE CALL!

The transcript featuring the pumping issue before Barbara McCarthy is in.  Read it here.  The issue: should a lawyer have had to absent herself from an ongoing trial to pump, or should the judge have allowed a break in the proceedings?

From an email to Jack Tuter this morning, arguing our position that breaks should have been given:

The fact remains that a young and dedicated attorney, whether lead counsel or not, should not have to make a choice between absenting herself from a trial where a man is facing a fifteen year maximum sentence or attending to her maternal obligations.  I can tell you this matter has engendered a very angry response from those familiar with the situation long before I posted it, and the fact that a young lawyer may have acquiesced to the wishes and authority of an exacting judge does not, in my opinion, make it a positive for the judiciary.  Having a second pair of trained eyes and ears in a fast moving and stressful trial setting is invaluable, and could make all the difference in the end, without even discussing the added stress and burden possibly placed on the lawyer’s performance who had to run about during the trial to express …

AGREE OR DISAGREE – YOU MAKE THE CALL!

…………

UPDATE

2:36 pm – Television media is all over the Barbra McCarthy pumping story.  Requests for comment by the judge were reportedly met by the JA with a message along the lines that the transcript would be available later today to help explain the full picture.

We had a very brief chance to review a few pages of the computerized transcript over the court reporter’s shoulder, and it seems to indicate a discussion during which it was clear that the lawyer in question would have to exit the courtroom to express her breast milk.  A request to take a screen shot was denied.  Whether or not the word “recess” was used wasn’t readily apparent, and McCarthy did offer some supportive words of understanding while seemingly making it clear that the trial shouldn’t stop.

Again, it was a very quick review of the record, we don’t have a copy, and since it’s not audio as in other courtrooms, the tone of the conversation is not discernible.  Ultimately we’re told the lawyer did leave the courtroom on two occasions to pump during different days of the trial, so at some point during the proceedings the Defendant would have been without the eyes and ears of one of his lawyers.  As stated before, whether it’s an appeal issue would depend on the full circumstances and a full reading of the entire trial transcript.

The case is State v. Anthony Searcy, 14-011944-CF10A.  A verdict was reached on April 13, 2018, not last week as previously reported.  The State failed to prove the charge of Burglary Dwelling, finding Mr. Searcy guilty of the lesser included offense of Trespass …

EHRLICH GONE Merrilee Ehrlich is not staying until June 30th, notifying Jack Tuter via email today that her retirement is effective as of 5:00 PM today …

ENTER McCARTHY …

In one of the worst weeks for the 17th Circuit in years, details are emerging concerning a trial with Barbara McCarthy featuring a pair of female defense attorneys.  One of the attorneys has a newborn, and requested time during the trial for a pump break.

Apparently, the attorney was told there wouldn’t be any recesses for pumping, resulting in the Defendant having to endure periods of the proceedings when one of his lawyers had to absent herself.  Depending on the full circumstances, it could be an appeal issue.

Whether or not McCarthy was aware of the dangers to Mom and supply concerns associated with interrupting the pumping schedule before denying the request for a recess is unknown at this time.  We’ll be sure to update when the picture gets clearer. (CLARIFICATION – McCarthy had no problem with the lawyer exiting the ongoing trial to accommodate pumping, but made it clear the trial would not be paused)

All in all a terrible few days for the Broward judiciary.  Bobby Diaz, Merrilee Ehrlich, and now concerns over McCarthy acting very imprudently indeed.  Morale in Criminal is at an all-time low, and with little oversight by the mainstream press, no end in sight …

Washington Post: Workplaces must give moms space to pump breast milk

Florida Bar Journal: Emerging Protections for Nursing Mothers in the Workplace

Coming Soon – Does Jack Tuter look down on the Criminal Division?; Court reporter mayhem!

Channel 7 reports Ehrlich resignation is finally official as of June 30th …

UPDATE

We’re told the woman in the video, who through no fault of her own drew Merrilee Ehrlich’s ire, may have passed away after being released from jail.  Still waiting for confirmation, and praying it’s not true.

Developing …

**6:10 PM** we spoke to Ureil Ballard, daughter of Sandra Twiggs, who states Ms. Twiggs has sadly passed away …

SFC STRIKES AGAIN

South Florida Corruption has once again alerted the powers that be to some egregious judicial behavior via JAABLOG’s comments section.  The blog post by SFC of First Appearances bond court video is found at 11:22 A.M. on April 19th under Fun With Audio, and was viewed by the Public Defender’s Office.  A particular exchange starting at 17:50 of the video was seen by Howard Finkelstein, who was so outraged he fired off this strongly worded letter to Jack Tuter this morning.

Watch the interaction between Merrilee Ehrlich and the elderly woman in a wheel chair referenced above.  It’s sad, with Ehrlich at one point shouting “I’m not here to talk to you about your breathing treatment,” and when ordering Pretrial Services saying “you have to arrange for someone to carry you there if you can’t get there yourself.”  Broward deserves better.

(The video is quickly referenced here)

Following on the heels of Bobby Diaz’s curious behavior earlier this week, it’s hoped mainstream media will pick up both stories and hopefully put an end to continued backsliding to the ways of old …

FUN WITH AUDIO

The audio from State v. Mark Good is in.  Rafael Olmeda clearly identified himself directly to Bobby Diaz as a Sun Sentinel reporter.  The record is now clear.

From the audio:

DIAZ: You’re not allowed to take pictures in here, sir.

OLMEDA: I’m a reporter with the Sun Sentinel …

DIAZ: It doesn’t matter.  You gotta get permission to take pictures, I’m sorry.  That’s what the administrative order says.

We’ll be sure to update later, after time allows a more thorough review of the entire proceedings.  In the meantime, take another look at the relevant portion of Jack Tuter’s first email on the subject, dated April 12th:

I spoke to the Judge. Had the Judge known it was a sun sentinel reporter there of course would have been no problem. Rafael has been in my courtroom and taken pictures and so he knows it is permitted. It was an obvious misunderstanding. Had Judge Diaz known it was a someone from the Sentinel it would have been no problem.

And the pertinent part of Tuter’s second email sent April 13th, after it was pointed out by JAABLOG and an SAO representative that Olmeda had indeed identified himself as a reporter:

This is a follow-up to my email last night. Judge Diaz contacted me early this morning and advised after listening to the audio, Rafael did identify himself. Judge Diaz advises he misunderstood the media AO. Most of his cases do not have media attendance. As such he wishes me to advise he is sorry for the misunderstanding and by copy of this email I am advising Rafael as well …

SS: Here’s how to get back on the road if your license is suspended (Olmeda/Diaz/Nov. 22, 2017)

DIAZ MEA CULPA

Jack Tuter sent the following response this morning:

This is a follow-up to my email last night. Judge Diaz contacted me early this morning and advised after listening to the audio, Rafael did identify himself. Judge Diaz advises he misunderstood the media AO. Most of his cases do not have media attendance. As such he wishes me to advise he is sorry for the misunderstanding and by copy of this email I am advising Rafael as well.

As I said before photographers with media credentials are permitted to take photographs in our courtrooms. I as well apologize for any misunderstanding on behalf of the 17th.

We’ve ordered the audio for clarification as to exactly what Olmeda said, as  Tuter indicated on a follow-up email that he hadn’t heard it.  Diaz, for his part, has not yet returned a separate email sent earlier today regarding the misunderstanding …

THURSDAY NOTES

 No pictures, Sir!

Anyone familiar with legal news stories appearing in the Sun Sentinel over the last six or seven years may recognize their courthouse beat reporter Rafael Olmeda.  The picture above accompanies Rafael’s articles online, whether concerning the Parkland tragedy, the murder trial du jour, or bailiff Roger DeHart’s ongoing 1065 mile trek to help raise awareness about human trafficking.  Rafael’s around the courthouse for hours on end on a daily basis, and recognizable to most criminal lawyers and judges, with the exception of Bobby Diaz.

Today he stopped by Diaz’s assigned division to see the latest developments in the case of State v. Mark Good, involving extremely serious allegations of inappropriate touching during a massage.  The police report is found here.

The SAO, having decided not to appeal Diaz’s denial of the Motion to Disqualify filed over the Miss issue after-all, instead took the opportunity today to ask Diaz to send the case to another judge “in the interest of justice“.  Apparently, after having reviewed audio of the interaction between the judge and the ASA featuring use of the term “Miss” in lieu of proper names, the family didn’t want to go any further on such a sensitive matter with Diaz at the helm.  Defense did not object to the transfer request, but it was still denied, followed by a quick dismissal of the charges by the State with victim assent.

During the hearing, Olmeda attempted to take a picture of Diaz, but was rebuffed by the judge, who told him he needed permission to take photographs, even after Olmeda identified himself as a reporter.  Rafael complied with the order, leaving everyone familiar with well-settled laws concerning media coverage of state courts and the 17th Circuit’s Administrative Order Governing Media scratching their heads.

Accordingly, the following email was sent to Jack Tuter and Diaz:

This morning I was a witness to the proceedings in State v. Mark Good, in Judge Diaz’s assigned division. At one point during the proceedings, Rafael Olmeda, the long serving courthouse reporter for the Sun Sentinel, wearing proper identification, attempted to take a still photograph of Judge Diaz. Mr. Olmeda was silent, as was his camera, and in no way, shape, or form disruptive to the proceedings. Despite the fact there were no other cameras in the courtroom, still or video, Judge Diaz addressed Mr. Olmeda directly, and precluded him from taking any photographs. Judge Diaz stated words to the effect that his permission was needed in order for news media to take a photograph, and Mr. Olmeda complied by not taking any photographs, as it was immediately apparent that no permission would be forthcoming.

After the hearing, I reviewed Administrative Order No. 2018-3-Gen Governing Media, and was not surprised, given prevailing laws, to see that there does not seem to be a provision for a major media representative to seek permission from a judge before photographing a proceeding. While there is language to the effect about a judge deciding where a photographer shall position him or herself, this was clearly not the issue that occurred in court today, which audio of the events will confirm.

I will be writing about this issue tonight, and would appreciate comment as to whether Judge Diaz was correct in his order, or whether given the governing law, the administrative order, and Florida Rule of Judicial Administration 2.450, an injustice has occurred. Lastly, if the latter has occurred, what is the proposed remedy, and what, if anything, will be done to ensure the events of this morning will not be repeated in the future?

Here is Tuter’s response:

I spoke to the Judge. Had the Judge known it was a sun sentinel reporter there of course would have been no problem. Rafael has been in my courtroom and taken pictures and so he knows it is permitted. It was an obvious misunderstanding. Had Judge Diaz known it was a someone from the Sentinel it would have been no problem. 

The issue in the AO relating to photographs concerns non-media type persons taking photos on cell phones. 

The presiding Judge always has the  final say on courtroom decorum. I hope this will not be blown out of proportion. Any media photographer can advise the deputy or the clerk to communicate this to the judge so he/she knows they will be taking photos. All recognized media with credentials are always permitted to take pictures in courtrooms as long as it does not disrupt the proceedings. 

Simple communication to the judge through the bailiff or clerk would seem to alleviate any concerns. I trust this helps to clear the questions you posed.

As always I am interested in any issue my office can help to clarify. I appreciate you bringing this to my attention. I will communicate to all judges media credentialed photographers always have the right to take still photos in our courtrooms(.)

And our reply, in part:

To my recollection, Mr. Olmeda did identify himself as either “media” or “Sun Sentinel” in response to Judge Diaz’s comments.  In any event, there were no follow-up questions as to which outlet he worked for before the order was issued, and he was holding a large camera, not a cell phone.  Shouldn’t Judge Diaz have asked which outlet he was from?

We’ll be sure to update after the audio is obtained, and when Tuter or Diaz respond …

 Travels with Roger …
Roger DeHart made it through Volusia County today … well done!
The future is now – one of two circuit criminal courtrooms we visited today where the court reporter is history, and the Little Blue Man is here to stay …
Strike three for Destry – after two angry articles and a complaint to the Florida Bar, he’s been told by Tallahassee what everyone else already knew: JAABLOG is not breaking any rules.  Read the letter carefully.  The language about “publication of defamatory posts” is included because of misrepresentations to the Bar by Destry in his complaint.  Some things never change, including the fact that Matt, who likes to throw the word “coward” around, has yet to respond to any of our emails or the message left on his voicemail this afternoon seeking comment on the Bar’s actions …
Retired means retired – we’re not exactly sure who’s responsible, but under Tuter and Brenda Forman, judges who lose an election or resign in disgrace are no longer honored as “Retired Judges” by getting their picture displayed in the jury room.  Sorry again, Matt …
Qualifying is around the corner – whether or not surprises are on the horizon, expect judicial movement after May 4th when administration will know for sure which judges are safe for at least another six years.  We’re betting on Merrilee Ehrlich making it official soon thereafter as well …