The Florida Bar

Florida Bar News

July 1, 2011 Letters



Lawyer Advertising

Here we go again. Another redraft of our advertising rules is exploding on the law scene.

Expecting advertising lawyers to follow any laws except that of supply and demand is as useless an enterprise as teaching hyenas to eat with a knife and fork.

Let the free market work it out. The TV lawyers are eating each other up, and the law of diminishing returns is kicking in. My biggest complaint with my fellow attorneys is the pomposity that exudes from them at every chance.

“We believe that these changes are necessary to encourage the free flow of information to the public that is necessary for the selection of a lawyer.” How is some guy talking about his dog or telling us he was a farmer have to do with practicing law?

Advertising is here to stay, and no lipstick on it will make it anything but what it is, old- fashioned American hucksterism. Get over it, everybody.

Charles B. Tiffany

Innocence Commission

I want to convey a sincere “thank you” to the Florida Innocence Commission and to Sen. Joe Negron, Rep. Perry Thurston, Jenny Greenberg of the Capital Resource Center, and others who worked on the legislation that would have required stricter standards for police practices involving interrogations relating to eyewitness identifications and lineups.

It is refreshing that people such as yourselves take the time to sponsor legislation that is designed to reduce the number of wrongful convictions based on suggestive or otherwise faulty identifications carried out by those who are more interested in clearing a case by arrest than by arresting the actual perpetrator.

After all, how many people are in prison based on the in-court identification of a single eyewitness? I don’t have the numbers, but I would venture it’s more than a few. Eyewitness identification and lineup procedures are so important, and the possibility of error is so prevalent, that strict standards should be imposed.

I think Jan Pudlow’s first paragraph speaks volumes of the attitude that our lawmakers and the law enforcement community in general share: “The cops didn’t want a law telling them how to conduct eyewitness lineups and the cops won.” They don’t mind having laws that tell us how dark our window tint can be or whether we wear seat belts. They certainly don’t mind having relaxed standards of probable cause or expedited court proceedings that benefit them. They don’t even let us split our arguments in a jury trial anymore, because they recognized the value of first and last arguments to the defense.

Now, when it’s their ox that’s being gored, they complain; when it’s on us, they’re OK with it. And who are these lobbyists anyway? What do the lobbyists (who lobby “intensely”) for law enforcement do to get the bill defeated?

The point is that it’s bigger than just this law. It’s really about the fact that our liberty is eroding day-by-day, and our lawmakers are apparently all right with that.

It is the politically popular position to take on this most serious matter, but the right thing for them to have done would have been to pass the measure in its original form.

Ernie Mullins

I write to express my consternation with law enforcement lobbyists, sheriffs’ organizations, police unions, the “law enforcement crowd,” and assorted talking heads, interlopers, and pandering politicians who oppose the legislative imposition of standards for witness identification procedures in criminal cases.

There is no rational reason for the police to oppose compulsory standards that could possibly be paramount to the pursuit of justice, which applies equally to the executive branch, to the police, and to their investigations. Police convenience; “the public doesn’t trust the police to police the bad police;” alleged hurt feelings; defiant “you can’t make us do it” attitudes; etc., etc., are simply strawman excuses for police opposition to any form of public scrutiny, inquiry, or outside interference — including legislative — about how they conduct their business.

We are the public; they are public servants (not a para-military cult), and official police business and the standards police employ in doing it — if any — should be totally in the sunshine and subject to public review.

In my opinion, all law enforcement agencies should be required to conform their conduct to generally accepted standards for witness identification, because standards have proven to eliminate extraneous factors of police bias, influence, suggestion, and misleading, which lead to misidentification. As many know who follow these issues, studies show that where standards are not in place, false witness identifications result; where standards are in place, the incidence of innocent citizens being accused of crimes based on false identifications, diminishes.

I also urge mandatory standards that include all police conduct, both in public and at the station house, be recorded on video and audio. This would include functional, dash-mounted devices in police cruisers; devices monitoring police contact with citizens and suspects alike; and full-on recording devices in all interview/interrogation rooms. A fail-safe system would monitor all recordings to prevent manual override, switching off, or. . . inadvertent. . . deletion.

If our true pursuit is justice, and honesty and accountability our goals, total police service to the public — in the sunshine — seems to be the most fundamental, foundational step. The time is long past to take it.

Michael R. Rollo

Attack on the Judiciary?

For anyone who missed it, you really should read the remarkable March 1 News’ article “ABA President Zack derides attacks on judiciary,” that summarizes Steve Zack’s remarks to the Florida Supreme Court Historical Society.

Mr. Zack calls on Florida lawyers “to respond to attacks on the judiciary, make sure citizens have meaningful access to the courts, and fight for adequate court funding.” He enlists every lawyer’s participation in promoting the rule of law and educating others on the role of the courts if we are to avoid the risks of “loss of our liberty” and being “governed by mob rule.” Mr. Zack suggests that we are in danger of becoming like Cuba unless we support “access to the courts.”

In support of his impassioned message, Mr. Zack states “the role of the courts was clearly set out by the founding fathers, particularly John Adams, who emphasized that courts were not meant to be controlled by majority vote.” Invoking the name of this founder, Mr. Zack implies that our system of government was designed to afford minorities and poor people access to the courts so that they could be protected from “the tyranny of the majority.” However, the suggestion that the rule of law is a concept that somehow emanated from that founder’s overriding concern for the protection of minority rights through ensuring access to the courts does not appear to have strong support in the historical materials I have examined, at least as to John Adams’ concept of the rule of law.

On Wikipedia, John Adams is credited with enshrining the principle of the rule of law in the Massachusetts Constitution in 1780. In fact, Part One, Article XXX of that document reads: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

From this, it seems to me the rule of law was more about the principle of separation of powers for Adams than “access to the courts.”

In his pamphlet, Thoughts on Government (1776), Adams certainly recognizes the importance of the judiciary as a separate but equal branch of government when he says “the dignity and stability of government in all its branches, the morals of the people and every blessing of society, depends so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent of both, that so it may be a check upon both, as both should be checks upon that.”

But, I don’t see where Adams intended the rule of law to be all about “access to the courts.” Rather, it seems he wanted to ensure that no branch would dominate or overwhelm the power of the others.

The John Adams I am reading about wanted judges who, to the greatest extent possible, were not beholden to men or women, majorities or minorities, or groups or organizations, such as bar associations for that matter.

Perhaps Mr. Zack is referring to some other writings of John Adams than those I have examined in my brief search. Or perhaps he is thinking of Samuel Adams? I know I am about now.

William N. Drake, Jr.
St. Pete Beach

Foreclosure Jurisprudence
After reading the News’ article about the upcoming convention seminar regarding foreclosure jurisprudence, I was compelled to write clarifying what was a rather incomplete description of Florida appellate jurisprudence in the wake of the foreclosure crisis.

While Mr. Coffey’s analysis is focused solely on an appellate review of the crisis, it is important to note the article does little to explain what this truly means in light of the few, but hardly insignificant, decisions that have come down from the appellate courts in this area.

The changes in Florida jurisprudence have occurred in this area not at the appellate level, but at the trial level where judges have run far afoul of the laws that they are supposed to be upholding. A closer look at the appellate decisions show the majority of lower court decisions are being reversed on rudimentary principles of law. This should call into question just how far astray the judiciary has been led by the crisis, a question that can only be answered by looking not to the appellate level, but to the trial level where the problem truly lies.

There is significant evidence that the judiciary, as it relates to the area of foreclosure law, has suffered from systemic failure to protect homeowners’ interests, and that the appellate decisions in this area, while admittedly scarce in number, are an attempt to reign in just a few of the many blatant errors made by the trial courts in this area of law.

Specifically, appellate courts have not reviewed issues such as ex parte proceedings; improper review by judges of court records; rubber-stamping by judges on documents that are clearly defective and/or inadequate; overworked judges who have allowed the number of cases on their dockets to dictate the judicial oversight given to files, putting into question the propriety of the judiciary and its ability to meet the Code of Judicial Conduct, which requires a judge to “respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

The judiciary at the trial level has allowed the system to be manipulated into acting as a private collection agency for the banks, and has received direct monetary benefit from creating a system of rocket dockets that steamrolls over the protections afforded to individuals and their property rights. The clerks, and vicariously the judiciary and retired judges, receive a direct monetary benefit from the filing fees associated with foreclosures, giving the entire system a financial incentive to execute swift justice in order to generate more filing fees. There is substantial evidence that the entire robosigning crisis could have been avoided had the Bar and the judiciary heeded warnings from defense attorneys three years ago.

The judiciary also failed to provide the required substantive and procedural checks and balances, allowing into evidence affidavits that contained a substantial amount of hearsay, a practice that would never have been tolerated in any other area of law. creating “special dockets,” the judiciary has prevented defense attorneys from putting on a substantive case prior to summary judgment, and judges have time and again shown their lack of preparation prior to such hearings, as evidenced by the fact that they have not read the motion to be heard, or the responsive memorandum prior to presiding over a hearing. Further, the trial courts have tolerated a legal fiction of “coverage counsel” where attorneys not of record show up to represent banks at motion calendar. Such practice would never be tolerated under ordinary circumstances.

I hope this letter helps to elucidate how appellate treatment of this crisis has truly enforced what defense counsel have been saying for years, that the trial courts in Florida, until most recently, have not been protecting the interests of homeowners, but rather the interests of the banks, and have done so through systemic violations of procedural due process, substantive due process, and other constitutional protections that go to the heart of the judicial oath of office and to protecting the integrity and respect of the judicial system.

Roy D. Oppenheim