His beady eyes lit up. “Great. I love testifying. I’m very affluent, you know.”
J udge Herman Gold had retired eleven years ago, but that didn’t keep him off the bench. With our crowded dockets and the propensity of our criminal judges to be removed from office in the wake of bribery scandals, we need retired judges to help out. Some of the old judges have forgotten more law than most of us ever learned. That could have been true of Judge Gold, but he’d also forgotten most everything else. Hardening of the arteries had left the bulb a bit dim. There he was, perched on his high-back chair, peering into the cavern of the courtroom, a wizened bald buzzard of eighty-one, wearing his custom-made, minilength fuchsia robes, yapping at court personnel, keeping order in the snake pit.
“A tango!” the judge demanded.
“A tanga, Your Honor,” replied Sally Corson, a proper young assistant state attorney in a blue suit and white silk blouse. “It’s a Brazilian bikini, and it’s illegal on state beaches.”
She held up state’s exhibit one, and if you had good eyes, you might identify a red piece of string as the bottom of a bikini. The evidence tag was at least twice as wide.
“Illegal?” the judge demanded. “Says who?”
“The legislature, Your Honor. No buttocks or breasts on state-owned beaches. Chapter eight forty- seven.”
The judge was shaking his head. “ Meshuga. Ay, Marvin, what do you think?”
In the first row of the gallery, Marvin the Maven consulted with Saul the Tailor. “If she’s a shayna maidel, a Kim Basinger, what’s the problem? If she’s zaftig, a Roseanne Barr, I’d throw the book at her.”
Judge Gold nodded judiciously. At the defense table, a young woman who was demurely dressed in a knee- length skirt and long-sleeve blouse looked from the judge to Marvin and back again. Alice in Wonderland couldn’t have been more confused. At least her lawyer had the good sense to dress her for court. It’s one of the first rules. If you can manage it, even a murderer should look like a choirboy. When I was a young lawyer, I once forgot to give my dress-for-acquittal lecture to a weightlifting champion charged with aggravated assault. He showed up in a muscle-T that depicted Darwin’s ascent of man-an ape, a Neanderthal, and finally, good old homo sapiens moving up the evolutionary ladder. The jury thought he most resembled the ape, and he got two years to plan his next wardrobe.
The assistant state attorney cleared her throat, trying to regain the momentum before the rest of the gallery voted. “Your Honor, the defendant was observed by numerous witnesses at Keys Memorial Beach. She was playing Frisbee while wearing state’s exhibit A.”
“Frisbee?” the judge demanded. “Is that illegal, too?”
I waited while Judge Gold ran through the rest of his calendar. It was a typical day. A man convicted of murder wanted a new trial and a divorce because his wife had an affair with his lawyer sometime between opening statement and closing argument. A Hialeah homeowner faced zoning charges for building a statue of La Virgen de La Caridad in his front yard. The Biting Bandit of Miami Beach was arraigned on charges of stealing two watches and thirty dollars in food stamps, and severing three ears and one index finger. The prosecutor was careful not to stand too close when pointing toward the carnivorous fellow and intoning, “This defendant…”
I waited through several dozen other hearings. The clerk called a number of minor drug cases, all scheduled for pretrial intervention, just one of a number of devices to toss cases out of the courthouse. The criminal justice system does not so much dispense justice as process defendants. The prisons cannot hold the miscreants already there, much less the thousands who should be added each year. So the prosecutors, public defenders, probation officers, and various state agencies engage in a gentle conspiracy with judges-real and retired-to spit out the defendants who are swept into the maw of a system that has bitten off more than it can chew.
We think of the courts as slow, unwieldy machines with creaking parts. Not in Miami. Here, what passes for justice takes place with frightening speed, each judge sometimes ruling on a hundred cases a day, hearing motions, taking pleas, dismissing charges, and occasionally even presiding at trial.
The players in the justice game speak their own language. Rapists are treated in a program for MDSO, mentally disordered sex offenders. Sleazy street criminals who rat on their pals are CI, confidential informants. First-time offenders get bounced into PTI, pretrial intervention with CTS, credit for time served.
“Set aside the alias capias, and send him back to PTI,” Judge Gold ordered the clerk, in a case where a drug defendant, a college instructor, finally showed up in court.
“The meter is ticking on the speedy trial rule,” an anxious prosecutor told the judge, pleading for an early court date.
“We’d take a deal,” the public defender offered, “if the state nolle prosses all but one count, agrees to CTS, in-house rehab, five years’ probation, early termination on completion of MDSO.”
“I’m thinking about one year incarceration,” the judge mused, considering a plea bargain.
“Min man is three,” the prosecutor responded, shaking her head, indicating she’d love to help, but the legislature has set minimum mandatory sentences.
Behind the bench, the flag of the state of Florida hung forlornly. The flag itself is a glorious historical fabrication. An Indian woman stands on the beach, greeting an arriving steamship with flower petals. A more appropriate state symbol would be a fat county commissioner taking cash from a condo developer with the skeleton of a rickety high-rise in the background.
Finally, the clerk called out: “State of Florida versus Francisco Crespo. Motion to dismiss.”
I stood, stretched my neck out of its eighteen-inch collar, and approached the lectern in front of the bench. Abe Socolow beat me there. Credit his daily power-walking routine. He hadn’t changed. Lean as a rake, mean as a snake. Black suit, black hair, white shirt, black tie decorated with gold handcuffs and prison bars. A sallow complexion, a sardonic sneer, a brooding intelligence that barely controlled his seething anger at every defendant who crossed his path. He is a rarity in today’s age of get-rich-quick lawyers who pass through the state attorney’s office long enough for a cup of coffee and a smidgen of trial experience before migrating downtown for the big bucks. Abe Socolow is a career prosecutor, and his career was built on being smart, tough, and nasty.
“Your Honor, this motion is frivolous, ludicrous, and utterly beyond the pale,” Socolow said. “It is a misuse of motion practice, outside the bounds of Rule three one-ninety, and should be summarily rejected by the court.”
Good day to you, too, Abe.
I cleared my throat and elbowed Socolow to one side. “There are no material disputed facts, and the undisputed facts do not establish a prima facie case of guilt against Mr. Crespo.”
Socolow snorted in my ear. “Mr. Lassiter is excellent at quoting the rule. Unfortunately, he does not know how to apply it. The evidence of a prima facie case is here.” He stabbed a finger at a stack of pretrial depositions.
Judge Gold took one look and cringed. He didn’t read the newspaper unless the ponies were running at Calder. “Why don’t you fellows summarize it for me?”
“The case is entirely circumstantial,” I began, jostling Socolow with a shoulder and screening him from the judge’s view with my height. “What proof does the state have? That my client was found in proximity to the scene of an alleged homicide.
That he had an altercation with the deceased. Where is the direct evidence of the crime?”
You can get away with that sometimes with juries, ridiculing the state’s case as based on circumstantial evidence, but judges know better. A few even remember Thoreau’s admonition: Some circumstantial evidence is very strong, as when you find a trout in the milk.
“Your Honor!” Exasperated now. “Mr. Lassiter sees what he wants and ignores the rest. His client’s latents were all over the steering wheel of the forklift that impaled the victim.”
“Mr. Crespo used that forklift every day,” I replied. “It would be highly suspicious if his fingerprints were not there. What is significant is that the state has no eyewitness to put him on the forklift at the time of the assault. Indeed, the only eyewitness testimony, that of the paramedics, puts Mr. Crespo several aisles away and unconscious when the attack took place. Finally, other than what appears to have been a fistfight between the two men, there is no evidence of an assault at all.”
I sneaked a peek at Socolow. His jaw muscles were doing aerobics. I kept going. “The forklift could have been driven negligently by a third party who simply bolted after he accidentally ran down the deceased. Perhaps there was no driver at all. It could have been a runaway forklift.”
“A runaway forklift!” A touch of crimson crept into Socolow’s sallow complexion. “Why not suicide? Maybe Mr. Smorod-whatever-his-name-is jumped at the moving forklift in order to kill himself. Mr. Lassiter isn’t arguing the
