SORRY, ELIHU

Elihu Smalls may have helped keep attorney John Couriel off the federal bench, but today Couriel landed on his feet, appointed by Ron DeSantis to the Florida Supreme Court.

Desantis also made Renatha Francis a Supreme Court justice, all the way from the Palm Beach Circuit Court. Francis was sworn in to the Florida Bar on 09/24/2010, making her eligible for the State’s top court by a hair

WPTV – DeSantis news conference

GOT QUESTIONS?

Thursday, June 11, 2020 at 5:30 PM – 7:30 PM EDT

The Broward County Bar Association is live streaming a judicial forum on June 11th.

Accordingly, Ruby Green, president of BACDL, sent the following email this evening requesting submissions for interview questions.

As stated in her message, queries specific to individual races will be considered, so anyone with concerns regarding any of the candidates, including the four with JQC experience, should email Ruby directly at ruby.l.green86@gmail.com.

From the BACDL email:

… Each organization has been asked to submit 5-10 questions to be asked to the candidates for consideration. Additionally, specific questions for a particular race can be submitted also, just be specific as to what race you are referring to when submitting that question.

I would like for us to be involved in asking questions so if you have any, please send them my way by close of business this Friday, May 29th. The Judicial races are listed below!

COUNTY COURT GROUP #22: Allison Gilman v. Casey Mills

COUNTY COURT GROUP #27: Phoebee R. Francois v. Jacob E Segal

COUNTY COURT GROUP #31: Roseanna Bronhard v. Sean William Conway v. Natasha DePrimo

CIRCUIT COURT GROUP #16: Dennis Daniel Bailey v. Abba Sheila Rifkin Logan v. George Odom Jr.

CIRCUIT COURT GROUP #18: Patti Englander Henning v. Kristin Weisberg Padowitz

CIRCUIT COURT GROUP #27: Meredith Chaiken-Weiss v. Matthew Isaac Destry v. Frank David Ledee

CIRCUIT COURT GROUP #30: Dale C. Cohen v. Ian Richards

CIRCUIT COURT GROUP #50: Linda A. Alley v. Vegina “Gina” Hawkins

IT’S A MIRACLE!

Courts have been closed for more than two months already, but today marks the first time we’ve seen a confidential, mid-hearing communication between client and lawyer during an afternoon Broward ZOOM hearing.

It happened this afternoon, during Barbara Duffy’s docket. A need arose for an attorney/client conversation, and BSO provided a telephone number for the client to speak with his lawyer off-camera and confidentially mid-hearing. Duffy put the case on recall, and concluded it a short time later after the private consultation ended.

It’s a miracle of modern technology!

Whether it’s a coincidence that Dava Tunis, a Miami judge, was on Broward ZOOM last Tuesday afternoon handling an executive assignment asking to no avail for the attorney/client break-out room to expedite her proceedings, or it’s because of this letter asking again for contemporaneous communication sent by Howard Finkelstein to Jack Tuter the same day Tunis was presiding in Broward, we’re glad to see the 17th Circuit has finally taken the initiative to take one step further away from the dark ages, courtesy of one Alexander Graham Bell

CHIEF JUSTICE UPDATE

From a press release issued this morning:

Florida’s Chief Justice Charles Canady issued an order late on May 21, 2020, creating a new pilot program for civil jury trials … In other actions last night, Canady also took the following measures:

  • Issued a separate new order establishing health & safety precautions to be used in Phase 2 of the expansion of court operations. These precautions are based on a report issued by a statewide advisory COVID-19 Workgroup.
  • Amended an earlier order called SCAO20-23 that provides comprehensive emergency procedures for use in courts in the pandemic. The amendments incorporate the new Phase 2 safety procedures contained in the COVID-19 Workgroup report.

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WFMJ – Texas court holds first US jury trial via videoconferencing

SAO UPDATE/CLOSURES

From FTU re depos:

We are requesting that LEO depos not be scheduled before June 8 so the LEA have a chance to set up their own processes. They can’t use any equipment that can also be used to access criminal justice data bases according to FDLE and they cannot mandate that officers use their personal devices so they are all diligently working to set up equipment that can be used for this purpose and they need a bit of time.

The email below was also sent to SAO employees earlier this afternoon titled Courthouse and Office Update.

As follows:

Good afternoon everyone, hopefully you are staying safe and well.

As most of you have heard by now, effective June 1st, the Clerk of Court will be opening their offices to the public for floors 1 thru 4 of the West Wing.

ONLY THE CLERK’S OFFICE IS OPENNING TO THE PUBLIC.

The West Wing first floor entrance will have separate security lines for the public and employees. The East Wing 3rd floor rotunda entrance is open to courthouse employees only. I have been asked to remind you that ALL staff coming into the courthouse must be wearing a mask.

Although the West Wing floors 1 thru 4 are accessible by the escalators, for ADA purposes (and in case of breakdowns) the first two elevators will be set aside for the public. The other 6 elevators may be used by courthouse staff.

THE SAO, PD AND OTHER COURTHOUSE OFFICES WILL NOT BE OPEN TO THE PUBLIC.

Current SAO staffing and alternating work schedules will continue as is. Courts will continue operating remotely and there will be no ‘in person’ court attendance. Evidentiary hearings or witness notices must refer to remote platforms via Zoom and not have a courthouse address.

Assistant State Attorney’s and staff must continue the preparations needed to support these court Zoom hearings and remote platforms.

Chief Judge Tuter will schedule meeting sometime mid-June to discuss future opening options and jurors.

Again, it is so important to maintain your social distancing, wearing of masks and frequently washing your hands.

ASAIC’s and Support Supervisor’s please make sure everyone in your units receive a copy of this message.

We will keep you updated as things progress. Stay safe everyone.

SAO UPDATE

The email below was sent to all Felony ASA’s today titled “Afternoon Dockets and Depositions.”

We’re also working on a public records request regarding jail conditions and access to courts in June, and trying to figure out why Barbara McCarthy doesn’t seem to be listed on the Zoom hearing docket schedule, so please stay tuned.

SAO email:

As you all know by now, judge’s will be handling their own dockets daily in the mornings. Out of custody changes of pleas will be scheduled on these morning dockets. Attached hereto you will find the protocol for setting out of custody change of plea hearings. In addition to these protocols, all SAO requirements regarding changes of plea, i.e. supervisor consultation and approval of any offer that involves a charge reduction, change of charge or below guidelines offer must be obtained and documented.

I expect that most, if not all, bond motions will be scheduled on the morning dockets as well. Al matters will be handled via zoom by the assigned attorney whether it’s a division attorney or a special unit case.

Afternoon emergency bond dockets will be suspended after Monday May 18, 2020. The afternoon time slots – 1:30 to 6:00 p.m., will instead be used for the 16 circuit criminal divisions to hold evidentiary hearings such as Arthur Hearings and VOSC hearings on in custody defendants. There are 16 divisions so each FTU division will hold these types of hearings once every 16 working days. The protocol for these hearings is attached hereto as well. Emergency bond hearings not set before the assigned judge will continue to be calendared on these afternoon dockets regardless of who the assigned judge is.

Matters to be set on these afternoon dockets will be notices in the normal course and we will received dockets listing all cases to be heard the day before. These dockets will be forwarded to the assigned division attorneys and the docket clerk’s who will send out reminders to any attorney with a case on the docket. All attorneys are to appear via zoom and handle their own cases. To be clear, FTU division attorneys will be handling their own cases but all special unit cases or any case assigned to an attorney not in the particular FTU division must appear via zoom and handle their own cases.

We will be sending out the zoom invitation to any attorney with a case listed on the docket but in case we miss one, it is the attorney’s obligation to reach out to me or one of the FTU division attorneys to obtain the zoom link so they can appear.

Depositions will be resuming as well. An AO setting forth the process for taking depositions had been issued just prior to the courthouse closure that stated digital court reports could be used for less serious cases and stenographers have to be used for serious cases. I am attaching a copy of that AO hereto. Depositions will, until further notice, be conducted via video conferencing but the requirement that either a digital court reporter or a stenographer, depending on the type of case involved, participate via video conferencing remains in place.

Division FB has developed a deposition protocol that we anticipate will be followed by all judges. That deposition protocol is also attached hereto for your review.

We recognize that not all civilians will have internet access or access to the required video conferencing app. We also recognize some civilian witnesses ma not be comfortable appearing via video conferencing. We have drafted an internal protocol regarding the deposition process that I am also attaching hereto for your review. This protocol is a work in process and may be amended as necessary.

It has also come to our attention that law enforcement witnesses cannot use any official devices that also have access to confidential criminal justice information. As a result, LEA are working on obtaining terminals or tablets that will not be connected to their servers. Accessibility to these devices will be limited so scheduling and adhering to schedule will be very important. A protocol for setting LEO depositions is being developed and I will share it with you as soon as it is available. I can tell you that we will have to go through the agencies liaisons to schedule LEO depositions.

These processes are all works in progress and may have to be changed or adjusted as we move forward. Please feel free to share comments or suggestions about any aspect of any of these matters.

CONFUSION!

There seems to be some confusion behind the scenes as to the recently issued directives to criminal judges regarding Zoom scheduling and hearings.

Some feel they were caught off guard.

It’s a frustrating mess.

In fact, just yesterday morning, before Marty Fein and Andy Siegel sent emails detailing the new procedures, Jack Tuter wrote the email pictured below to criminal judges, indicating there might be a communication breakdown somewhere along the chain of command.

In the meantime, more than 2600 men and women sit in restricted confinement, awaiting court hearings …

IT’S A START …

*UPDATE* UPDATE*:

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*UPDATE* – 10:15 AM – the new procedures seem to have caught some of the judges by surprise. There doesn’t seem to be any consensus or direction from most of the judicial assistants we’ve been emailing as to how to get VFO or Arthur Hearings set. We’ll update when there’s more information available …

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The email below seems to indicate in-custody defendants will not be transported to court in June, and will have opportunities to be present in court with their assigned judge only once or twice a month via Zoom. As stated before, there are more than 2600 inmates currently awaiting hearing dates in the Broward County Jail, and FSP, for sentenced individuals, is presently transporting eighteen people a month from Broward …

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Email from Andy Siegel, Criminal Administrative Judge, sent at 10:06 PM last night:

With the reduced number of qualifying Covid bond motions, we are expanding the in-custody ZOOM docket to allow each felony division to schedule any additional hearing as needed while continuing to hear routine bond motions.

We anticipate this schedule to stay in place until the courthouse is reopened and in-custody defendants are being transported to the courtrooms.


Starting next Tuesday, May 19, 2020, the in-custody ZOOM docket (1:30 PM to 6:00 PM)  Each of the 16 felony divisions (excluding drug court, mental health court and repeat offender court) have been assigned specific dates.  The Division judge will be scheduling in-custody hearings such as Arthur hearings, VFO hearings and other hearings which did not qualify for the Covid hearing docket because of the nature of the alleged offense. 


For all practical purposes the docket will function the same except it will not consist of only Motions for Release/bond and change of pleas. The new procedure should keep the same hours, so hearings will be scheduled accordingly.


The specific dates assigned to each division are as follows:


FA – May 19th and June 10th

FB – May 20th and June 11th

FC – May 21st and June 12th

FD – May 22nd and June 15th

FE – May 26th and June 16th

FF – May 27th and June 17th

FG – May 28th and June 18th

FH – May 29th and June 19th

FJ – June 1st and June 22nd

FK – June 2nd and June 23rd

FO – June 3rd and June 24th

FP – June 4th and June 25th

FT/FX – June 5th and June 26th

FV – June 8th and June 29th

FY – June 9th and June 30th


The process for defendant appearances will be as previous with BSO bringing Defendants by location. Dockets will be prepared as before. 


This shift was anticipated when we originally created Special hearing docket and I believe I spoke to most of you about the anticipated change over the last two months (yes, its only two months but it seems like eternity) 


If any question please call me or Judge Fein we shall do our best to answer your questions. 

COMPARE AND CONTRAST

Here is the emergency docket for tomorrow, May 14th.

Once again, there are 21 in-custody defendants who will be present at a court hearing tomorrow, systemwide, out of more than 2600 inmates currently in the Broward County Jail awaiting hearings.

Remarkably, on Friday, there is no docket at all.

Here’s what else there isn’t since the pandemic started:

VFO Bond Hearings; Arthur Hearings, and Open Pleas.*

We spoke to one attorney today who has been trying to get an Arthur Hearing armed with an affidavit from an alleged victim who wants the defendant out, which according to the lawyer also shows the case is overcharged and should have been bondable all along. The attorney can’t get a hearing date, and is now considering a Writ to the court of appeals.

Are the current procedures in place frustrating? Yes. Dangerous and grossly wasteful of time and taxpayer money? Of course. But whatever we’re experiencing on the outside is nothing in comparison to the suffering, both emotional and physical, going on in the jails and with inmates’ loved ones.

In neighboring Miami-Dade County, as one might expect, we’re told there are at least three courtrooms going daily in the morning and afternoon. First appearances twice daily, misdemeanor dockets, and felony emergency dockets, including Arthur Hearings, VFO/Danger Hearings, Pleas, arraignments, and other emergencies. Witnesses, including probation officers, appear remotely just like the attorneys, and there’s even a break-out room for lawyers to have real-time, confidential electronic communications with clients mid-hearing, if the need arises. Judges have the option of waiting to resume a hearing while lawyers and clients privately confer, or to handle other matters before recalling the case. Rumor has it another ZOOM courtroom is going operational in Miami soon as well.

Broward County, after garnering good reviews at the outset for a quick response during the early days of the pandemic, is once again living up to its reputation as badly managed and irresponsible. And it’s a shame, as we know of comments by many Broward judges who are itching to move cases, and are willing to try alternatives to broaden the systems currently in place. Whether the problems are truly technological or budgetary remains to be seen, but given Supreme Court directives and the Constitutional implications, should be thoroughly investigated after the pandemic is over. But whatever the case may be, the fact that Jack Tuter, chief judge of Broward County, is now in charge of a circuit where even the lone fully electronic courtroom is now sometimes sitting idle a full 19 days before the June 1st proposed reopening, is absolutely inexcusable. Broward deserves a leader that can guide the stakeholders to places neighboring jurisdictions have been at for weeks or months, and if Tuter lacks the focus or creativity to get it done, should immediately step down for another judge willing to take the helm.

*There’s a joke in the 17th Circuit, where because of an anachronistic and risk-averse State Attorney, open pleas are the lifeblood of a gridlocked system.

It goes like this:

Q. How do you confuse a Broward judge?

A. Tell her you have a negotiated plea

Also from Miami-Dade: