All posts by Jaaber

OH, ILONA!

Peter Avsenew is getting off death row, due to an egregious error by now retired judge Ilona Holmes. The Supreme Court ordered a new trial today. The original case took roughly thirty days to try.

Holmes is ironically currently listed as the Chair of The National Judicial College. Long time practitioners will also remember her haughtiness and absolute, frequently espoused belief that she was an expert in the rules and caselaw. Yet despite numerous reminders from defense counsel here, she refused to follow a very clear, simple rule regarding remote perpetuation of testimony of a key witness, causing a momentous, expensive, and unanimous reversal of the most serious type of case in existence.

Rule 3.190(i)(3) provides:

(3) If the deposition is taken on the application of the state, the defendant and the defendant’s attorney shall be given reasonable notice of the time and place set for the deposition. The officer having custody of the defendant shall be notified of the time and place and shall produce the defendant at the examination and keep the defendant in the presence of the witness during the examination. (emphasis added)

From the opinion:

However, proceeding with the testimony—despite Ms. Avsenew’s inability to see Avsenew—violated rule 3.190(i)(3). The failure to ensure that Avsenew was kept in the presence of Ms. Avsenew during her testimony (in this case, her “virtual” presence) constituted a clear violation of rule 3.190(i)(3). Thus, the testimony of Ms. Avsenew was not properly admitted against Avsenew at trial. Importantly, we note that the error here appears to have stemmed from sheer indifference to Ms. Avsenew’s inability to see Avsenew. (emphasis added)

Read the entire opinion here.

A job well done by Gabe Ermine, Phyllis Cook, and Bob Wills, three lawyers protecting all of our constitutional rights. As far as Holmes is concerned, we hope Jack Tuter will strongly consider the “sheer indifference” tag by Florida’s highest court, as well as other instances from the past, if Holmes ever decides to request to return as a senior judge …

GELIN FOR BOG

500 word Platform Statement by Bill Gelin for the 2022 Board of Governors election, to be published in the February printed Florida Bar News:

My name is William “Bill” Gelin, and I have practiced criminal law for the last twenty years. I am also the principal author of the award winning, corruption busting Broward Courthouse blog, JAABLOG.

Both facts are why I’m running for the Board of Governors (BOG).

As a criminal lawyer and journalist, I have dedicated my career to fighting against institutionalized racism and its byproduct, mass incarceration. Working primarily in Broward, known for traditions of draconian sentencing and an unparalleled level of JQC-worthy judicial bad behavior, I have seen in recent years beneficial strides made in both areas. Less people are going to prison for non-violent, low level, aggressively filed charges, and judges, for the most part, also are adhering to the same standards and rules of professionalism demanded of those appearing before them.

That being said, hard fought gains could disappear faster than our South Florida beaches are eroding if strong, outside voices are not immediately heard at the highest levels of The Florida Bar (TFB).

No less an authority than Jorge Labarga has highlighted some of the concerns being discussed throughout the legal community, most recently through a dissenting opinion in December, which serves as a candid criticism of his more conservative fellow justices on the Supreme Court.

From the dissent:

“(T)he majority’s decisions of late have ushered in a series of drastic changes in civil, criminal, and rulemaking contexts, and today’s decision by the majority only furthers this list.”

Labarga was moved to make his statement over a rule modification he believes will jeopardize further progress toward diversity in the legal profession, an area where so much improvement is still needed. Taken together with a recent ruling impacting constitutional rights of due process and against self-incrimination, and TFB new Rule 3-7.18, which many believe will severely chill and limit attorney free speech, these factors and others should cause concern for all those interested in criminal justice reform.

Criminal justice practitioners are woefully underrepresented on the BOG, something I hope can start to be remedied if I’m fortunate enough to be elected. However, the issues I am discussing affect all Bar members, and most importantly, the general public, for which TFB exists to protect.

TFB must switch gears and stand to preserve the ability of attorneys to zealously advocate for their clients, and to maintain the right to truthfully call out or criticize errant or unprofessional judges who embarrass us all, without the fear of retribution.

Unfortunately, traditional checks and balances continue to be eroded by the Bar and others, and without a strong outside voice on the BOG, the already precarious trust between the general public and the legal profession may be compromised.

It’s too important a time to maintain a business-as-usual attitude at TFB. New ideas and courage in support of honest attorneys trying to make a difference are needed, as opposed to representatives interested in networking and boosting their personal profiles and revenues. If elected, I will fight for you, and for the public we serve.

(Disclaimer/Unsolicited Mass Communications – anyone subscribed to JAABLOG not wishing to receive blogs regarding Bill Gelin’s candidacy for BOG Seat 17/1 of the Florida Bar should immediately UNSUBSCRIBE to JAABLOG. To Jay Kim: equal time is absolutely promised on JAABLOG, if so desired)

2020 Gelin Platform Statement

MOVEMENT

Hunter Davis is taking over Tom Coleman’s circuit felony division; George Odom is taking over Davis’ old 2nd and 3rd degree felony division. Davis will remain on the fifth floor in room 5780.

The moves appear to be housekeeping related, based on judicial experience levels …

CLASS ACTION!

Gary Kollin writes:

I just filed a class action 1983 civil rights federal lawsuit seeking to void the capias warrants that are issued by the Broward Clerk upon the filing of an information. The complaint is attached. These capiases have been issued for over 42 years, at least since I became a lawyer, and have never been challenged.

The argument in the lawsuit is as follows. For at least that period when the State Attorney filed a felony information, the State also filed an instruction sheet to the Clerk directing the Clerk to issue the capias. The Clerk then issued the capiases and set the bonds on the capiases as set forth on the convenience bond list.

The argument is that the State had no right to instruct the Clerk to issue the capiases because the Constitution requires that warrants can only be issued by an independent and detached magistrate after a determination of probable cause and that the magistrate is the one that sets the bond. The Clerk has no authority to set a bond and no authority to issue the capias without a judge’s order.

In every other circuit I investigated, the Information and probable cause affidavit are submitted to a judge who determines probable cause, issues the capias if the standard is met, and sets the bond.

Additionally, this issue applies to every pending case where the defendant was arrested on a not-in-custody capias. The argument is that any evidence or confession obtained as a result of the arrest on the unconstitutional capiases, they are fruit of the poisonousness tree and suppressible. A prime example is when drugs are discovered as a result of the arrest.

If you represent any person who has an outstanding not-in-custody capias, please contact me.

CIVIL RIGHTS CLASS ACTION COMPLAINT
FOR INJUNCTIVE AND OTHER EQUITABLE RELIEF:

John Doe vs. Brenda Forman (Clerk), Harold Pryor (State Attorney) and Gregory Tony (Sheriff)

KIM V. GELIN

Jay Kim v. Bill Gelin for Board of Governors, 17th Circuit, Seat 1.

(Disclaimer/Unsolicited Mass Communications – anyone subscribed to JAABLOG not wishing to receive blogs regarding Bill Gelin’s candidacy for BOG Seat 17/1 of the Florida Bar should immediately UNSUBSCRIBE to JAABLOG. To Jay Kim and anyone else considering a run for 17/1, equal time is absolutely promised on JAABLOG, if so desired)

Florida Bar News: BOARD OF GOVERNORS NOMINATING PETITIONS ARE DUE DECEMBER 15

HAROLD PRYOR’S REPORT CARD*

January 5th will mark Harold Pryor’s first year anniversary as State Attorney for Broward County.

As 2021 heads to a close, the office is still helmed at the highest levels by dyed in the wool, long time Satz true believers. Change from the years 1976 through 2021 is hardly apparent, except in scattershot instances where “discretion” is seemingly awarded to long-suffering line ASA’s, and then greatly curtailed after being exercised through disapproving actions from the Felony Trial Unit’s head, Mike Horowitz.

As Broward stands today, diversion programs have yet to be brought into line with other major jurisdictions in Florida. Acquittal rates after trial remain egregious, and the Case Filing Unit is still humming along bringing poorly investigated, nickel and dime over-prosecutions into the system at an alarming rate. And let’s not even talk about the Juvenile Division.

Weakness on Public Corruption, another pillar of Satz’s infamy, is remarkably status quo as well. Unfortunately, those with connections to Pryor seem to be getting the traditional breaks enjoyed under the old administration, as alleged by Bob Norman in today’s Florida Bulldog article “After promising reform, top Broward prosecutor Pryor gives big break to charity-cheating cop.” Even worse, poor minority offenders like Destiny Williams, also featured in the article, are being given the same old multi-fisted gut punches that were the defining characteristic of the Satz mass incarceration decades.

From Bob’s article:

Pryor specifically said he would hold police officers fully accountable should they commit crimes and reform a justice system that was “stacked against people of color and poor people.”

Officer (Jeffrey) Stewart raised $32,000 for the grieving mother and widow, but Cruz received only about $23,000. According to Gallinal’s October arrest warrant, Stewart warned Cruz that if she went to the authorities about the missing money she would likely be deported

But on the morning of Nov. 2, Pryor’s office quietly dropped the felony charges against Stewart and replaced them with two petty theft charges, both misdemeanors. It was part of a plea deal approved by Pryor

In contrast, (Defense Counsel) Gelin points to the case of Destiny Williams, a 23-year-old financially disadvantaged black woman he represents on a violation of probation case. While in custody on the charge, Williams gave birth to her first child, a premature daughter, born Oct. 7. The mother was then separated from her baby and returned to jail.

Prosecutors want to imprison Williams for 45 months on the violation of probation charge … Williams has a court hearing scheduled for Friday.

(JAABLOG note – the VOP allegations arose before Destiny’s pregnancy. The hearing is tomorrow with Liz Scherer)

Gelin says a reformed justice system would give Williams a chance to be a new mother to her daughter. He personally asked Pryor to spare Williams jail time, but Pryor declined to intervene

“After everything he campaigned on to make things better for poor minority offenders, it appears he’s on board with destroying this young family,” says Gelin.

So there you have it. One year in, and things appear to be exactly the same, except much more disorganized. The obvious question to ask therefore remains: are old guard Satz employees like Mike Horowitz capable of changing? Can they accept and acknowledge that they were wrong in their approach in the previous decades, the necessary first steps that need to occur if meaningful reforms are to be achieved? Or do they need to be replaced by qualified outside professionals willing and able to implement Pryor’s promised changes?

Let’s hope the problems at the SAO are simply a personnel issue, and not something that rest solely on Pryor’s shoulders by his own design. Make no mistake about it; Pryor bears personal responsibility for everything done in his name, and most certainly in those instances where he chooses to personally become involved, as in the cases of Jeffrey Stewart and Destiny Williams. But if he isn’t in control of the situation because he’s still finding his footing, he needs to take decisive action now. The honeymoon’s over, and too many people are still being hurt.

In closing, we’ll echo the hopes of Gordon Weekes, quoted in Bob’s article, and keep our fingers crossed.

“There’s great hope in him,” says Weekes of the 34-year-old Pryor. “I have that hope. The frustration comes when you ask, ‘Are we moving fast enough?’ And that is the problem. Folks want tangible things, tangible changes. Are we seeing it? No.”

*UPDATE* – Jeffrey Stewart felony Information, misdemeanor Information, and Warrant describing the accusations)

* (this is the first in a series of articles on Pryor’s performance to date)