Articles Posted in Articles of Interest

“That lawyer is a scumbag!” “That doctor rips off his patients.” “My professor is a total pervert.” Be careful. Depending on what words you use, your Tweets could subject you to a lawsuit. Just ask Courtney Love.

In a landmark case, singer-actress Courtney Love is currently being sued for libel after what she tweeted in 2010. In that tweet, she wrote that her then lawyer, Rhonda Holmes, had been “bought off” when she wouldn’t assist Love with her lawsuit against the managers of Kurt Cobain’s estate. Cobain, as you probably know, is Love’s ex-husband and former Nirvana lead singer.

While there have been other similar lawsuits concerning Twitter libel, this is the first one to actually make it to trial in the United States. As a result, Love’s monumental case can have a huge impact on social media. The “average Joe tweeter” could find themselves in court facing defamation charges depending on how this case is decided.

“Brady.” For most, that word conjures up other words and phrases that include, “Marsha, Marsha, Marsha!” It also may spark words like, “The Bunch,” “Greg,” and/or even “Sam the Butcher.” Others may think of “the man that has it all,” star Patriot quarterback Tom Brady. For most of us who work within the Criminal Justice System, Brady refers to the prosecutors’ obligation to provide defendants any “exculpatory evidence,” which includes favorable evidence to the accused, evidence that may reduce a defendant’s potential sentence and/or evidence that could impeach the credibility of a witness. The principle was represented in the landmark 1963 Supreme Court decision Brady vs. Maryland.

In that case, a guy by the name of Brady and a buddy of his named Boblit were prosecuted in Maryland for murder. Brady confessed to playing a part in the murder, however, he passionately told law enforcement that it was Boblit who did the actual killing. While prosecutors had a written confession from Boblit that he had done the killing all by himself, they failed to turn that document over to Brady’s attorneys. After his conviction and sentencing, he appealed, arguing that prosecutors violated his due process rights because Boblit’s statement was material to either Brady’s guilt and/or potential punishment. He was successful in persuading the Supreme Court that had prosecutors turned over that statement, Brady’s outcome, certainly his sentence, would have been different.

In spite of the Brady ruling, too many state and federal prosecutors choose to ignore their obligation to play fair. Every day it seems we hear of innocent defendants wrongfully convicted, many spending decades in prison. Often, the cause is prosecutors’ failure to fulfill their constitutional duty and instead, withhold crucial evidence in numerous cases. A recent study revealed that 43% of those defendants falsely accused were as a result of prosecutors committing Brady violations. Why do they (obviously not all, but many) routinely do it? Cause’ they can, and are rarely held accountable for their actions.

You’re having a really bad day. You figure it would be a good idea if you clear your head by going for a brisk walk around the block. While on your walk in your neighborhood, a car pulls up next to you. The passenger lowers his window and yells some obscenities at you. If you’re African American, let’s suppose he calls you the “N word.” If you’re Jewish, he calls you a “Kike.” If you’re Latino, assume he calls you a… You get the picture. Naturally, your blood boils and you choose to react. You reach your hand into the passenger window and smack the passenger, preventing him temporarily from hurling another abhorrent slur at you. The car drives off and, moments later, cops pull up and arrest you.

Imagine how you’d feel when you learn that the criminal charge levied by Officer Friendly is not a simple misdemeanor battery, where you’d be able to get out of jail by posting a bond of approximately $1500. Rather, you learn that the charge is burglary with a battery, a life felony, which is non bondable. That means, at your first appearance before the judge, typically within 24 hours of your arrest, the judge makes a probable cause finding after reading the arrest report and then announces that you’ll be held with no bond. What? Is that even possible?

Not only is the above scenario possible, but it’s exactly what happened to one of my South Florida criminal clients. He was a teenager who reacted to being called the “N-word.” He was charged with burglary with a battery because a portion of his body entered the conveyance (car) of another with the intent to commit a battery therein. Only a portion of your body, like a hand, is all that is necessary to justify a charge of burglary under this scenario. I took over the case after the first attorney representing the African American teen couldn’t get him out of jail for weeks. Immediately after commencing representation, I was fortunately able to secure his freedom. After a lot of zealous advocacy, I was ultimately able to secure a very reasonable resolution of the case.

Christine Morton was attacked and killed at her home on August 12, 1985. Although her husband Michael Morton was at work at the time, authorities suspected him, and he was later charged and convicted for the murder. Morton spent nearly 25 years in prison for this wrongful conviction.

Fortunately, a few years ago, a group of attorneys, working pro bono on Morton’s behalf, managed to discover DNA evidence that later exonerated Morton. Morton was not only found to be innocent, but the prosecutor (and now judge) in his case, Ken Anderson, was accused of withholding exculpatory evidence. Anderson was later criminally charged for this act.

The exculpatory evidence that was withheld by Anderson was a bandana. When tested, the bandana contained Christine Morton’s blood and hair and the DNA of a man named Mark Norwood. Norwood was later convicted of Christine Morton’s death.

I wasn’t surprised at all. Aaron Hernandez, former star tight end for the New England Patriots, who is facing first degree murder charges, will plead the Fifth Amendment in his pending civil lawsuit. In that federal suit, Hernandez is being accused of shooting 30 year old Alexander Bradley in the face outside a Miami strip club. Apparently the two had been arguing immediately before Hernandez pulled out a gun. Bradley seeks over $100,000 from Hernandez to compensate him for his damages.

The primary, if not sole reason why Hernandez is invoking his right to remain silent, is ensure that he in no way incriminates himself. He has a lot to protect. He’s facing a life sentence if convicted in his murder case.

His attorneys initially petitioned the Miami judge to request a delay of the civil case until he resolves his murder case. Unfortunately for Hernandez, the judge denied his request.

A Montana teacher, Stacey Dean Rambold, was charged with three counts of sexual intercourse without consent in 2008. Rambold plead guilty to the rape and he was sentenced in August and released from a Montana prison on probation the next month. The teenage victim, Cherise Morales, took her own life in 2010.

Montana is now fighting to get Rambold back behind bars after he served only 31 days for raping a 14-year-old girl. Prosecutors filed an appeal Friday questioning the controversial 31-day sentence imposed on Rambold.

“The circumstance of a 47-year-old teacher having sexual intercourse with his 14-year-old student is precisely such a circumstance warranting a mandatory minimum sentence,” the appeal document said.

I’m often asked to write about real cases that I’ve handled and/or learned about first hand that provide insight into the criminal justice arena. Here’s one that I remember that sheds light on how random a defendant’s bond can be.

I was involved in a Florida criminal case where the defendant was a trusted bookkeeper for a very successful Miami company. Over the course of a two year period, it was uncovered that she stole money at least once a week. Because every time she stole money from the company the amount was over $300, she was facing felony grand theft charges for every act of theft. That means that she could have been charged with approximately one hundred separate counts of grand theft, each punishable by a maximum penalty of up to five years in prison. Additionally, every count carries with it a separate bond amount. For each count of grand theft in the third degree (amount taken is between $300 and $5000), the bond amount is $5000. That means, assuming she stole on one hundred separate occasions, her bond amount would be $500,000. Also, she’d be facing up to five hundred years in prison.

Fortunately for her, she was charged with one count of organized scheme to defraud. The charge takes all the separate acts of theft together and combines them into one scheme to defraud made up of numerous separate acts of theft. It’s a felony in the first degree, punishable by a statutory maximum sentence of up to thirty years in prison, carrying a standard bond amount of $15,000.