My favorite judge gets appointed to the Circuit Court

July 23, 2010 @ 3:12AM

My favorite judge gets appointed to the Circuit Court

By Carlos Miller -...

Judge Jose L. Fernandez

Further proof that Florida Governor Charlie Crist is just another empty suit.

The republican turned independent appointed Miami-Dade Judge Jose L. Fernandez to the Eleventh Judicial Circuit Court – the same court that reversed my conviction for resisting arrest without violence on the basis that Fernandez abused his discretion as a trial judge.

This is what the governor had to say about Fernandez:

“As a lifelong Floridian and Miami native, Judge Fernandez has served the people of Miami-Dade County well while sitting on county bench, and I am confident he will serve the circuit court with the same level of integrity,” said Governor Crist. “In addition, his wide variety of legal experience ensures that he will review each case with impartiality and fairness.”

Integrity? Impartiality? Fairness?

This is the same judge who allowed improper evidence to be entered in my trial which led to my conviction of resisting arrest without violence, despite the overwhelming evidence – not to mention the acquittal of other charges – that I had not committed an arrestable offense.

This is the same judge that slapped me with a harsher sentence than sought by the prosecutor because he was “shocked” by my “lack of remorse.”

This is the same judge who had to recuse himself from the trial of my second arrest because he had proven to be biased against me during my first trial.

What else can you expect from a guy who spent four years as an attorney for the Professional Law Enforcement Association before becoming a county judge?

It didn’t help that the prosecutor in the case was the son of a veteran Miami-Dade police officer.

For those of you who are new to this blog, let me break it down for you quickly.

During the trial of my first arrest, the Miami-Dade State Attorney’s Office did not have any actual evidence to convince the jurors that I had been standing in the middle of the street taking photos, which is for what I was supposedly arrested.

The picture in the header of this blog – the one I took seconds before they arrested me – shows the street behind the officers, making it impossible for me to have been standing in the street blocking traffic.

So the prosecutor decided to use my blog against me in the hopes that it would paint me as a cop-hater. The prosecutor even printed out one article I wrote where I referred to Los Angeles police officers as Gestapo because they had been caught on camera beating kids and journalists with billy clubs.

The prosecutor began telling the jury that I thought all cops were Nazis, which is why I got myself arrested.

My attorney immediately objected on the basis that it was completely irrelevant.

But Judge Fernandez agreed with the prosecutor, saying that the article I wrote proved I was bias against cops.

The jury was then treated to a long monologue about me hating cops so much that I purposely got myself arrested in order to start a blog dedicated to badmouthing them.

When I tried to explain on the witness stand the context behind the article, Fernandez would shut me up, ordering me to only answer “yes” or “no” to the questions. If you read the article in question, you would see that I even complimented NYPD. But the prosecutor never mentioned that and I was not allowed to explain.

This led the jury to believe that I had resisted arrest, even though they acknowledged that I did nothing illegal to get arrested in the first place because they acquitted me of refusing a lawful order and disorderly conduct.

When it came time to sentence me, the prosecutor recommended that I get 3 months probation and 50 community hours.

Fernandez turned around and slapped me with one year probation and 100 community hours.

And he based his sentencing solely on my lack of remorse.

Remorse? For taking pictures?

This is what the panel of Circuit Court judges had to say about that when they reversed the conviction in my appeal (the entire appeal decision is below).

“We see no reasonable basis that the inflammatory issues of Nazism and Gestapo, or the actions of Los Angeles Police Officers, should have been injected into this, a misdemeanor trial, involving the City of Miami Police.

We reject the State’s contention that Defense counsel had a reasonable opportunity to rehabilitate the witness. To do so would have required introducing and explaining the article, screening the referenced videos and other materiel taken of the Los Angeles melee, and including the contrite responses of the senior Los Angeles Police officials.

It would, in essence, have turned Miller’s misdemeanor trial int an examination of a violent, cross-continental incident. In that this evidence is more prejudicial than probative under these circumstances, we find the trial court abused its discretion and reverse the conviction.”

But Fernandez didn’t stop there. He continued to abuse the discretion of his judicial powers when he slapped me with a harsher sentence just because I maintained my innocence.

This what the Circuit Court had to say about that:

It is Constitutionally impermissible for a trial court to impose a sentence based upon a defendant’s assertion of innocence before, during and after trial.

The State contends this did not occur, stating”. . . the court reviewed the total trial evidence and entered its sentence with a mere passing remark on remorse in the context of a comment on the Appellant’s misbehavior and demeanor.”

On the assumption that we have reviewed the same transcript, we reject the State’s interpretation of the record.

As evidenced by the sentencing colloquy, the trial court’s concern, in large part, was for the “real” heroes at Arlington, for Miller’s supporters and for Miller’s “shocking” lack of remorse. The trial court’s comments were not so much passing references, but, instead, grounds for sentencing.

REVERSED with directions that defendant be tried and, if necessary, sentenced before a different judge.

The Circuit Court judges wrote this in December and made it official in January. Crist appointed Fernandez to the same Circuit Court in May.

Perhaps Crist should have Googled Fernandez before making his decision.

When I had to stand before Fernandez on the trial date of my second arrest in January, my lawyer asked him to recuse himself or else we would file a motion demanding him to recuse himself. He recused himself immediately, which allowed me to stand before another judge in March who dismissed the case when the cop didn’t show up.

It should be noted that earlier this month, a Los Angeles jury awarded a reporter $1.5 million in damages because she was brutalized by LAPD officers on that notorious day. So yes, they were acting like complete Nazis.

This is what Fox11 camerawoman Patricia Ballaz had to say about the verdict:

“May 1, 2007 is a day that I will never forget, it is a day that has changed my life forever,” she said. “My genuine hope is that this trial and its verdict will serve as a strong reminder to the LAPD to think twice about using excessive force in any kind of situation.

“Our free speech and civil rights are precious and if we can’t rely on the police to protect them, who can we trust?”

Not Fernandez. That’s for sure.

Here is five page decision from the Circuit Court that reversed my conviction.

Carlos Miller’s appeal victory

Comments

Anonymous

1 year ago

What a crock of you know what. Another example of “It’s not what you know, but who you know.” Perhaps your case will be an example of how this “Judge” is less than impartial and a suck up to the the “System”.

Anonymous

1 year ago

Get over it about the judge already. He screwed up. He screwed you. He was reversed. Big effing deal. A lot of judges have been reversed and are in much higher positions than he is. If you think your one case is enough to keep him from getting appointed, you think way too much of yourself.
And I guess you didn’t submit any comments during the public commentary period. There’s a whole bunch of judicial openings right now. Go and submit your comments about the candidates you don’t like. Then maybe you can make a difference.

Anonymous

1 year ago

Silver,

I’m over it. I proved my point.

But that shouldn’t stop me from informing my readers of the latest news regarding this judge.
Carlos Miller recently posted..Maryland capitol police threaten videographer with arrest

Anonymous

1 year ago

One reason that I do corporate law (writing contracts and dealing with the SEC) instead of litigation is because I have no faith at all that judges involved have any impartiality or fairness whatsoever. All of them bring their biases to the table, and these days because of a school of thought taught in law schools called “Legal Realism” they seem to be proudly advancing their biases. When Justice Roberts was confirmed, he talked of judges being an umpire and trying to just call balls and strikes as they see them. But that was derided and in fact many judges and especially politicians appointing judges do not like the idea of impartially calling balls or strikes. Their view of justice is not the blind judge impartially weighing the scales, but one with the blindfold off and their thumb on the scale – giving the benefit to the police, or to the government, or to the latest politically correct group. It doesn’t matter who benefits, the point is that the judge doesn’t see anything wrong with tipping the scales.

Once you walk into a courtroom, you’ve already lost. The best way to win is to avoid it at all costs, because the “justice system” is anything but. Carlos, you were lucky as hell to have won. And reading the history of your case obviously shows that you did a good job. But you could’ve easily been screwed over by a judge who didn’t like you. The strength of the legal argument matters little, because a judge can use contradictory precedents to support a pre-determined conclusion. The “law” is what the judge says it is, not what is written down anymore.

It’s sad, really. The public has a notion that all politicans are corrupt but that judges aren’t. They’d best wise up and learn that judges are just as corrupt, if not more so, than politicians.

Anonymous

1 year ago

You make a great point Mr. Fernandez… I mean Silver.

These judges are selected based on their moral character and their neutrality. Carlos is right to advertise the failings of this judge. More than likely, Carlos wasn’t sent an invitation to his public hearing (which happened in April, I think). If more people spoke up when they were wronged, we would have far less corruption. Or maybe I am just naive. Either way, this judge is as trustworthy as a used condom.

Anonymous

1 year ago

I should note that not everyone is as cynical as me about judges. Many litigators will say that it’s the amazing strength of their legal argument and their excellent writing that persuaded a judge to rule in their favor. That’s more of an exercise in vanity, than a comment on the nature of the judicial system. The people interested in upholding the fantasy of the impartial judge are those whose lives depend on the illusion.

Anonymous

1 year ago

“Big effing deal.”

If you “screwed” up and cost someone THOUSANDS of dollars in liabilities because of it they would probably think it was a pretty effing big deal as well. But then *you* wouldn’t be protected by the State monopoly on justice and you’d probably have to pay the damages. They State, on the other hand, promotes it’s screw ups.

Anonymous

1 year ago

Politics, it is all politics. How good you are at the job or how right your decisions are have no bearing. It is just who you blew last and who you promise to tomorrow.

Anonymous

1 year ago

Doesn’t the appointment have to be confirmed by the state senate? Will there be a hearing. If there is I’d recommend that you go and testify against him. In fact, I’d find the defendant in EVERY decision he made that was over turned and have each one of them testify against him.

bettyblue

1 year ago

By the above comments, maybe Judge Fernandez is blood related to Fidel Castro because he acted the same way with photographer Carlos Miller. Most likely he forgot we live in the USA and not in Cuba where taking pictures of police abusers still is a crime ?. Do we still have any civil liberties, freedom and rights left in the USA ?

Anonymous

1 year ago

Carlos,

As I read this I kept thinking that it might be a good idea to dial back a bit on the use of terms like Nazi and Gestapo when describing the actions of police. There’s a sense of hyperbole tied up with the word Nazi that makes the person using it sound a bit absurd.

I am not saying that what the cops in any of the situations you have described behaved well. Just that describing them as Nazis might not be the best way to get your point across. Remember that the Nazi Party did plan and perpetrate the ogranized, controlled and (horribly) efficient murder of 12 million people. There are certainly plenty of other words that can be used that don’t carry the same stigma for the person being described or the person using the word.

You’ve got an awesome blog here and I really appreciate all of the work that you put in to this. Please, keep up the good work.

Anonymous

1 year ago

There are some really, really evil judges in high positions… and they are untouchable.

Anonymous

1 year ago

Colin,

I agree with you and I I have since done that. This particular post was written in May 2007, a month after I started this blog when I had no idea it would get the readership it gets today.
Carlos Miller recently posted..Maryland capitol police threaten videographer with arrest

Anonymous

1 year ago

Look for the money.

Would be interesting to find out how much money Judge Jose L. Fernandez raised directly and in-directly for Governor Charlie Crist. My uneducated guess would be a lot.
duane kerzic recently posted..Plants

Anonymous

1 year ago

Carlos wrote this in the comments above:

> I agree with you and I I have since done that.

Right after he just wrote the following in the article from today:

> So yes, they were acting like complete Nazis.

LOL.

Anonymous

1 year ago

Trial by combat, in the olden days they used swords, now they use high priced lawyers, whoever has the better weapon wins.

Nothing has changed in thousands of years.

Anonymous

1 year ago

Charlie Crist has always been a calamity. Good for the Florida GOP not nominating him again.

Anonymous

1 year ago

he nominated the guy to solidify his FOP support. but wasn’t Crist right on Shiavo? not saying i like the guy, just saying he does some things poorly, other things okay.

Anonymous

1 year ago

Great blog – I don’t even know what to say. It’s mind blowing that more people aren’t outraged by this kind of thing.

Remorse…for what?! Snapping a goddamn photo? Fuck that! If people stop taking pictures of the cops then Oscar Grant died for nothing.

It’s amazing that people are focused on whatever the TV feeds them and tells them is “important”. Yet, right outside their door they lose more civil liberties every minute of every day. It’s sickening…

Fight the good fight, Carlos…while you still can.
SJR recently posted..Bricks &amp Bones