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Wednesday, February 28, 2007





(CHICAGO)(February 28, 2007) My God, the Fourth District Court of Appeal. I have litigated a pile of cases in that court, and the court doesn't particularly care for me. I have won some appeals and lost others. Personally, I don't particularly like the judges.

I had one DCA judge censured; and one judge removed for misconduct (shoplifting). So I could write a negative assessment of the Ana Nicole Smith appeal. But my personal integrity compels me to say the Fourth DCA is one of America's outstanding intermediate state appellate courts.

Florida courts are among the best in the nation when it comes to accessibility and openness to litigants; in other words, the structure of the court system is open and accessible. It's the best. Yes, they have a lot of zoo-ready judges; but then as I made clear in an earlier column judges everywhere in America can be loony.

On balance, I think the Fourth DCA will do a good job, and I expect them to try to redeem the reputation of Florida justice, by delivering the body to ANS's mother.

The problem is that the oral hearing before the court was problematical. Virgie Arthur's appellate counsel had an overwhelmingly strong case, but she is a lousy appellate advocate and was unprepared for the oral argument. The "guardian" made a somewhat more coherent argument in what is a weak legal position.

I hope Beadle Bumble, a character in Dickens who says, "If the law supposes that…the law is a ass, a idiot" does not win.

Arthur's lawyer was unprepared and virtually incompetent. When asked about Anna Nicole's purchase of a burial plot, Roberta Mandel was silent. She didn't know the trial record. In point of fact Smith purchased no plots; Howard Stern did. No one told her to clarify that point on rebuttal. A weak legal team.

Mandel conceded the "facts" but that is where she should have made her strongest attack. Even though "facts" are usually "found" in the trial court, and are not subject to review on appeal, the Smith appeal was extraordinary.

The nation spent a week seeing that ANS was deranged and under the influence of drugs, as well as grief-stricken. How could her "intent" be controlling, and so clear, when the record was replete with evidence she was incapable of forming informed intent or informed consent? Mandel was silent, again.

This is a case where on common sense the mother should win. The arguments made by Judge Seidlen and the "guardian" are absurd. If the child is too young to decide, let a complete stranger take control. What kind of nutty reasoning is that?

And so the Fourth DCA faces a real challenge. In my opinion, Florida law (Andrews v. McGowan, 739 So.2d 132) completely favors Virgie Arthur. But Mandel's appeal was presented so poorly that there is a serious question whether she can win.

Ultimately, Judge Seidlen made Florida courts into "a ass, a idiot" by his pathetic performance and by his perversion of both statutory law and common sense. In a case of unfortunate characters, common sense, common law and Florida statutes supported Arthur's position.

Will she win? She should. Despite the "cold neutrality" of the judicial process, judges still are sensitive to public opinion in a highly visible case such as this one. To suggest that a drugged-up, incoherent woman knew what she was doing when she claimed she "wanted to be buried in the Bahamas" is ludicrous. Roberta Mandel made an atrocious showing as Arthur's appellate advocate; that could doom Virgie Arthur's strong case.

Andrews should appeal to the Florida Supreme Court if she loses.

This appeal once again presents graphic evidence of the great difference that a good advocate can make. Mandel had a strong case but she is a lousy lawyer. Stern/Guardian had a weak case but in the face of a weak appellate opponent they may well win.

I vote for Virgie Arthur. Based on the hearing, it's hard to suggest she will win. But she should. It's the law.

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Chicago-based Internet journalist, broadcaster and critic Andy Martin is the Executive Editor and publisher of © Copyright by Andy Martin 2006. Martin covers national politics with forty years of personal experience. Columns also posted at Comments? E-mail: Media contact: (866) 706-2639. Cell (917) 664-9329.


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