All posts by Jaaber

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 …

NADIR

Email received by judicial assistant at 8:24 AM on April 4, 2018, six minutes before docket start time … (click to enlarge)

Judges are mad, and this time they have a right to be.

Apex Reporting, a division of Verbatim Support Services, is in the crosshairs for failing to provide reporters on-time, or at all, as reflected in the email above.

Today one judge went court room hopping to share a court reporter (and a dais), while another judge had to ask attorneys to waive an on the record proceeding for scheduling matters only, a fairly regular occurrence in at least one courtroom where reporters arrive well after start time.

A developing story in one of the major circuits yet to go to all electronic court reporting in the circuit criminal division …

SUNDAY NOTES

It’s old home week at JAABLOG.  Well trodden topics and familiar faces are making a comeback in the mainstream media and elsewhere.

First up, the JNC:

Long accused in forums like ours of stripping the meritocracy dead, the Sun Sentinel Editorial Board has also recently taken the appointment panel for judges to task.  Stating “political affinity should have nothing to do with it,” the Sentinel sums it up thusly:

America’s courts have no defense against politicians who seek to stack the bench except the power of public opinion — an opinion that should have no patience this November with politicians who would corrupt the courts to sabotage our fundamental liberties. In Florida, that means having no use for politicians who don’t support making the nominating commissions independent again.”

Our feelings are well-known on this subject, so we’ll end with a paraphrased story from law school orientation day, when Barbara Babcock said hello to us 1L’s with a version of the classic undergraduate welcome warning, playing on the 50% flunk out rate for college freshman.

Look to the person on your left, and to your right,” Babcock said.  “And now congratulate each other, because you’ve reached the end of the meritocracy by getting into law school.  From here on out, it’s not what you do, but who you know …

Next up, Marni Bryson:

Bryson is no stranger to making headlines, or getting reversed.  Now she’s featured in the Palm Beach Post for sending 64 year old attorney John Carter to jail for thirty days on contempt allegations.  The Fourth DCA let him out almost immediately, pending appeal.

From the PB Post article:

I think you’re disrespectful to the people of Palm Beach County. I’m appalled,” Carter responded, saying that he had spoken to other attorneys who had the same complaints about her. “Never in my 35 years of practice have I ever experienced anything like this.”

For the record, we’ve never met Carter, but would love to speak with him now

And here’s Bobby Diaz:

Swing and a Miss.  We’re told Diaz has denied the SAO’s Motion to Recuse filed in State v. Mark A. Good, and that it’s to be appealed.  We’ll let you know the gender makeup of the assigned circuit court appeal panel when it becomes official …

Last up in this special blog reunion roundup, the recently resurfaced Matt Destry, and supermensch Johnny McCray:

BACDL got it right this year by naming Johnny for the Harry Gulkin Award.  McCray has won more than his fair share of big cases throughout the decades, and is known for possessing impeccable integrity.  He’s never been afraid to stand up against injustice, publicly bucking Eileen O’Connor when she locked up a prospective juror, and bravely calling out Destry in the strongest possible terms when Destry was still a sitting judge.  Some think he may have helped tip the election.

From the Westside Gazette Letter to the Editor, August 18, 2016:

Judge Destry is neither a friend to minorities nor to the poor. He has demonstrated over and over again that justice in his courtroom is at best sporadic and at worst provided only to those whose favor he covets … He is the most terrifying kind of judge—unpredictable, harsh, and wildly and inconsistently wielding his discretion … Judge Destry’s version of justice evinces his propensity to consistently betray fairness and justice. It is quite incredulous how he has suddenly developed such great interest in our community as he has obviously bamboozled a few into supporting and endorsing his bid to return to the bench … ” (McCray further develops the theme a week later also in the Gazette in Message to Black clergy and political operatives: Please vet judicial candidates before endorsement)

Everyone owes Johnny a debt of gratitude in helping to rid Broward of the likes of Destry, in addition to his deserved lauding for a career full of considerable courtroom achievements.  Please plan on attending McCray’s Gulkin award ceremony, set for April 26 at 5:30pm at the Pier 66 Panorama Ballroom. Tickets are $125 for private attorneys, and $75 for government lawyers and judges. If not sold out, tickets will be $140 at the door. Checks and RSVPs should be sent to Jason Blank, 888 S. Andrews Ave., Ste. 201, Fort Lauderdale, FL 33316 …

Ready for some new news?

Is she or isn’t she? – we’re told Bill Haury is staying put in criminal until Merrilee Ehrlich is replaced on the circuit court.  Very odd, considering Ehrlich’s first person dismissal of retirement rumors just last week.  But since judges are allowed to change their minds too, we’ve made a records request to Rick Scott’s office to see if they’re in receipt of a resignation letter, just in case …

Granted! (sort of)Chris Pole has taken himself off the DUI discovery mess in State v. Zahariev.  A sua sponte recusal order was entered by Pole after he initially denied Jason Blank’s Motion to Disqualify, and after Blank filed a Writ of Prohibition to the appeals court.  Will other cases, closed or open, be affected?  Wait and see

Rising C level – global warming is a serious concern in South Florida, but no one’s blaming it yet for the flooding of the Hollywood PD’s Evidence Room.  Eddie Lopez has filed this Motion with records requests to uncover the full extent of the damage, and in particular to see if his client’s attempted murder charges in State v. Cedi Pacheco have been compromised.  Is Hollywood up to date on evidence retention protocols, or antediluvian in its approach?  Wade and see

NYT: Texas judge tells appointed lawyer “You overwork cases”

Wash Post: Cruz should not face death penalty

NY judge admits he’s serial panty stealer

SF Gate: Offspring alum turned doctor gets mistrial for saving life

Houston judge resigns after sexting in court with bailiff

STANDOFF!

Merrilee Ehrlich says she is staying put in the Family Division.  Despite strong rumors of a transfer to Criminal to replace Bill Haury, Ehrlich just confirmed on the phone she is not moving, and definitely not resigning, as was also rumored.

Was there a standoff between Ehrlich and judicial administration?  Did Ehrlich threaten to quit if moved?  Is it possible Ehrlich may still be targeted for a transfer?  And where is Tarlika Navarro going now if Ehrlich is still in Family?

Developing …

MONDAY NOTES

Matt’s Back! Back! – Destry wrote a response over on LinkedIn, and since no one will ever see it there, it’s been printed in its entirety in the comments section, despite substantial inaccuracies.

Destry does get one thing right, in that he certainly touched a nerve. We’re happy to take criticism and debate almost anyone, but it’s galling to be lectured about ethics by someone who stands mute instead of angrily refuting allegations that he bartered a human being’s freedom in exchange for help with his losing judicial campaign. Pretty disturbing stuff even by Broward standards, and in his quest to rehabilitate his shattered reputation, or by blind conceit, he goes so far as to reference the Oath of Admission to the Florida Bar. His belief that he’s the kind of person that should be upholding in others the integrity of the legal profession unfortunately says a lot about what has transpired in Broward County legal circles over the years, and ignores JAABLOG’s considerable efforts and demonstrable results in making things a little better. It shouldn’t escape anyone’s attention reading here that he’s one of the individuals now deservedly out of a job.

Underneath the sour grapes, Destry makes an argument for blog moderation. Agree or disagree, but until laws change, or the Bar changes the rules of professional conduct under which JAABLOG operates, things will remain the same. Why? Because for better or worse, the blog has always been a reflection of the community it serves, and it’s now more important than ever to let the racists, misogynists, homophobes, and alt-righters have their say, lest we forget where we’ve been as a nation, or where we may be headed if we turn a blind eye.  And for honest citizens or parodists with legitimate gripes who may fear retribution, the forum must remain intact.  Those that seek to destroy will not dictate the terms.  It’s just that simple.

The Oath of Admission Destry cites starts with the words “I will support the Constitution of the United States”. That’s what it’s all about. And if someone doesn’t like it, including a disgraced former judge, they have the right to work to change the rules, or simply quit reading …

Sexist or Solicitous? – attorneys from both the Public Defender’s Office and the State Attorney’s Office have now filed Motions To Disqualify Bobby Diaz for claims of bias against female attorneys.  At issue is Diaz’s habit of calling women lawyers “Miss“, and the Esquires’ belief that Diaz’s alleged disdain for women barristers will taint the outcome of their cases.

Both motions are found here.  Take a moment to read, and You Make the Call!

Mike Gottlieb running for Florida House