Rumor has it the fates of the double dippers handling the Parkland case and attendant issues are in limbo. Apparently, one of the still working pensioners, Tim Donnelly, has been told he won’t be coming back in January, ostensibly due to budgetary concerns.
Concerning Mike Satz, Jeff Marcus, and Carolyn McCann, the remaining expensive and retired prosecutors looking to essentially stay employed ad infinitum given the pandemic and breadth of the Cruz case, many are hoping budget cuts and morale concerns within the ranks of talented, full time and decidedly unrecognized SAO employees will cause Harold Pryor to rethink his position on keeping the rest of the old guard in place, and at the center of an intense media spotlight for possibly years to come.
Our position hasn’t changed since Bob’s piece, while Pryor seemingly flip-flopped during the campaign as to whether or not Satz and company would be staying on if he won. Now, factoring in a looming budget crisis, let’s hope Harold ultimately makes a clean financial and symbolic break from the past, and spreads the savings, large or small, amongst his loyal, skilled, and underpaid ASA’s, who most definitely deserve to be appreciated and rewarded for their years of dedicated service …
Pro Bono Warrior Dan Tibbitt has secured a stay in Clarington v. State, following the Third DCA’s denial of the Writ of Prohibition which would have allowed Miami judges to proceed with PVH’s, known as FVOP’s in Broward, as early as this Monday on Zoom.
From an email from Dan:
… (t)hey denied stay initially and gave state 10 days to respond to certification, which would have pushed past the PVH date, I then filed a Notice to Invoke FLSC jurisdiction, then once the FLSC docketed the case and entered an order staying proceedings there (but not in circuit court), I filed a renewed motion to stay in 3rd DCA, which they granted just before 5 pm (Friday), stopping the PVH which was supposed to start Monday morning and allowing us the time we need to hopefully get case to merits review in FLSC …
The State has until December 18th to file its response. Until then, no probation violation hearings on Zoom in Miami or Broward, where at least one judge has told us the Third DCA’s rulings thus far are “instructional” …
Bill Barner, president of BACDL, sent the following email earlier this morning to the BACDL list serve:
Good morning. Yesterday I spoke with our incoming state attorney, Mr. Pryor. He is interested in beginning in-person hearings on a limited basis. He wants to know if our attorneys would want to begin non-jury evidentiary hearings such as stand-your-ground, VOPs, and Motion to Suppress. The idea would be to space out hearings so that there are limited people in any one courtroom at a time and to wear masks and practice social distancing.
We would need the chief judge and the clerk to agree. But Mr. Pryor wants to measure our interest in the meantime.
Please respond to me as soon as possible with your thoughts.
Bill Barner
This would mark the first notice since March when a litigation stakeholder, incoming or otherwise, despite only two Zoom links for in-custody hearings more than nine months into the pandemic, has publicly expressed willingness to reopen the courthouse …
The Fourth DCA, in last week’s State v. Lucas Stevenson, has determined THC oil products are now misdemeanors, assuming the oil or THC product weighs less than twenty grams. Bad news for Mike Satz, as one of his most egregious and anachronistic felony overcharges are now out the window.
Read the opinion. It’s not that simple, but we believe it’s properly encapsulated above.
Earlier today, the Broward SAO sent the following email regarding Stevenson, and breakdowns of existing cases:
“In a nutshell, the DCA agreed with the dismissal of a felony THC case based on the fact that it cannot be determined whether the THC was derived from organic material or is synthetic. This is different from the issue we recently discussed where all cannabis and THC has to have at least a .3% concentration of THC in order to be illegal. The issue here is the inability to exclude THC from the expanded definition of cannabis. If we cannot prove that the THC is synthetically derived, then it must be charged as cannabis and is not a felony unless we have 20 grams or more. As a result, all THC cases, if they substance has the required .3% THC level, will be downgraded to a misdemeanor unless there are 20 grams or more involved. The opinion will become final as the AG has advised they have no further arguments to make on the issue and will not be seeking further review. I wanted you all to be aware of this situation. Please identify any THC cases you may have and, unless it involves 20 grams or more, discuss the case with your supervisor. If the case involves other felony counts then we’ll most likely just reduce the one count to a misdemeanor. If the only felony is the THC count then we will need to refiled the case altogether … “
Congratulations to Carlos Canet on a momentous opinion. When we spoke to him earlier, he immediately pointed out his work was based on an earlier PCA in State v. Rosalez won by Russell Cormican and Sid Fleischman, now law after the Stevenson opinion.
On Behalf Of Daniel Tibbitt Sent: Wednesday, December 2, 2020 1:19 PM To: facdl-miami@googlegroups.com Subject: FACDL-Miami 3rd DCA denial of writ on Zoom PVH’s
Listmates,
Today the Third District issued their decision in our writ seeking to stop probation violation hearings from going forward over Zoom. Judges Emas and Hendon ruled against us and found that whatever constitutional issues were present in forcing a defendant to go to a PVH over video and separate from his attorney were outweighed by the special circumstances of the pandemic. Judge Gordo concurred in the denial on the ground that she didn’t find a writ was the appropriate remedy, although she suggested that she did not agree with the constitutional conclusion. Those of us who were involved in the writ will be discussing possible next steps for further litigation on this issue later this week, but for now this decision from the Third DCA will be seen by the Eleventh Circuit judiciary as a green light to hold PVH’s over Zoom, so our members should be aware of that. I will update you if there is further relevant developments on this, and for now if you have a case where a judge is scheduling a PVH over Zoom please let me know so that, as the point person for this effort for FACDL-Miami, I can continue to keep track. The Third DCA decision is attached. If you have questions feel free to reach out.
FloridaBulldog.org has a nice recap of the status of the case thus far found here, without referencing alleged shocking claims discussed in depositions, which include a threat to kill, live-cast topless dancing, possible JQC involvement, and a sitting judge being asked if she knows what her vagina looks like.
Mike Satz waits for Liz Scherer to start Zoom court
Given the extended closures, and the long awaited announcement of additional in-custody Zoom links, which, we’re told, should be implemented shortly, frustrations are at an all-time high in the 17th Circuit.
With the jail cap creeping up to 76% of capacity with roughly 3300 inmates still on widespread lockdowns due to social distancing measures, scared and angry prisoners, together with their families, lawyers, and oftentimes judges, have an awful sense of foreboding about where the Broward County judicial system is heading over the next few months. Cases are simply not being worked out preemptively like they are in neighboring jurisdictions Palm Beach and Miami, and things are at a boiling point with the holiday vacation season and SAO transition on the horizon.
Compounding the problems are a chorus of complaints about Liz Scherer, who, no stranger to late starts when the courthouse is operating normally, has continued to indulge old habits even on her few and far between assigned in-custody Zoom days.
Accordingly, since stakeholder Mike Satz is a first-hand witness to his former employee’s late arrivals on Zoom, the following email was sent earlier today to the SAO’s PIO:
(A)n attorney with thirty-five years experience has spoken with both Chief Judge Tuter and Administrative Judge Circuit Criminal Siegel concerning Judge Scherer’s tardiness yesterday on the in-custody Zoom AM docket. He voiced concerns shared by many individuals that given the scarcity of in-custody Zoom dockets, no judge should be showing up thirty minutes late, and then resetting cases at the BSO 12:00 noon cutoff for defendants who had to wait weeks or possibly even months for their hearings.
I believe both you and Mr. Satz were witnesses to yesterday’s late start, as the Parkland case was also noticed for 8:30 AM, and that Mr. Satz has also been kept waiting on Zoom by Judge Scherer starting late for in-custody Zoom hearings on prior occasions.
As the county’s top law enforcement officer who is in agreement as a stakeholder to keep the courthouse closed, does Mr. Satz feel it is appropriate for a judge to regularly start her three monthly in-custody Zoom dockets late, and have to reset hearings at the BSO cutoff?
Does Mr. Satz feel it is appropriate for the Parkland case, where there is no chance of release for Mr. Cruz, to utilize long periods of precious in-custody Zoom court time that could be dedicated to other defendants who may be releasable?
Does Mr. Satz feel it is acceptable to have only two Zoom links available for in-custody defendants more than eight months into the pandemic closures, and what is he doing to help create more accessibility to courts for inmates given his agreement as a stakeholder to keep the courthouse closed?
Lastly, will Mr. Satz be voicing his concerns to Judge Scherer, Judge Tuter, or Judge Siegel concerning Judge Scherer’s habit for tardiness, or does he believe that’s best left to the private bar?
“I would hope that she uses the time allotted for a docket, given the pandemic, more effectively and efficiently to maximize the number of cases heard. It seems odd to waste that valuable court time having people wait as she often shows up late for a virtual docket.“
So there you have it. It’s up to the private bar and the PDO to let Jack Tuter know what’s going on with his judges, if what little in-custody court time available is to be used efficiently.
We’ll be contacting Bill Barner, head of BACDL, to see if they can help too. In the meantime, contact Tuter with your concerns or personal observations, and suggestions for improvement.
Lastly, as previously stated, additional Zoom links should be forthcoming any day now for in-custody extended hearings, so let’s hope the judiciary can pull together as a team, shorten their traditional holiday breaks, and move some of the backlog of in-custody cases before the whole place goes up in flames.
Good afternoon everyone. Chief Judge Tuter held a virtual meeting today with all the courthouse stakeholders and agencies to discuss the status of Phase 2 and the reopening of Broward Courthouses.
Since Broward County has not met the requirement of a 5% or under, positive testing measure for 14 days our courthouses must remain in Phase 2. We will continue with virtual hearings and no face-to-face contact in courtrooms. We don’t anticipate jury pools until sometime in 2021.
The SAO will continue with our alternating work schedules per your unit supervisors.
As things appear to be getting worse, it is imperative that you maintain social distancing, wear your mask, and frequently wash your hands. The wearing of a mask protects those around you and protects yourself. Also, please keep your family and co-workers in mind as you go out to places on the weekend. Large crowds, small spaces and other weekend events will increase your likelihood of exposure. If you are feeling ill, you should get tested and do not come into the office while you are waiting for the results.
Judge Tuter has ordered that anyone in the public areas of the courthouse without a mask is to be escorted from the building.
Our next meeting with the Chief Judge will be sometime in the first or second week of December.
