Articles Posted in Breaking News

THE FACTS

36-year-old mother Qumotria Kennedy was recently a passenger in a vehicle that was pulled over after the driver allegedly didn’t come to a complete stop at a stop sign. Though Kennedy wasn’t doing anything wrong, police demanded her I.D. and learned that she had a warrant for her arrest out of Biloxi, Mississippi for failing to pay $400 in court fines. The fines were for traffic tickets that she failed to pay in 2013. Back then she told her probation officer that she was too poor to pay the fines and also, didn’t have any way to secure the funds from anyone. Ms. Kennedy worked in downtown Biloxi as a baseball field cleaner. She was earning less than 9 grand annually. For a single person, that is significantly under the poverty level. It’s important to note that Ms. Kennedy supports her two dependent children.

In spite of pleading poverty to her probation officer, Ms. Kennedy was warned that if she didn’t come up with the full amount of all the fines that she owed, in addition to the $40 monthly probation fee, she would be arrested. True to her word, the probation officer sought a warrant to arrest Ms. Kennedy once it was clear that the court fines and fees weren’t being paid.

This one is outrageous. A 16 year old boy was arrested and charged as an adult in criminal court and prosecuted for sexually exploiting a minor, under the federal pornography laws. Who was the minor? He was! Yes, North Carolina federal prosecutors prosecuted him for having nude pictures of himself on his cell phone and for sending naked photos of himself to his 15 year old girlfriend. She sent nude photos of herself to him as well. While the photos were never disclosed to anyone else, the two were both charged with four felony counts. The photos were discovered solely because investigators were looking into a bigger problem at the school concerning sexual images being shared without the victims’ consent. These teens weren’t involved in that scandal in any way.

The teens were forced to take a plea deal in order to avoid jail time and being forced to register as sex offenders. In addition to having to agree to be subjected to warrantless searches by law enforcement for a year, the male teen suffered numerous other penalties. Additionally, he was suspended as quarterback of the high school football team while the case was resolved. Additionally, his name was all over the media.

I’m still blown away by this one. In North Carolina, the state in which they were prosecuted, the age of consent for sexual intercourse is 16. So, while they could legally have actual sex, and take mental pictures of each of their teen bodies, they just couldn’t legally memorialize it with a photo to be shared with the other. Ludicrous!

…says my friend Whoopi Goldberg. In defending Bill Cosby, she stated, “The bottom line is, that’s the law.” She added,”Innocent until proven guilty.” In illustrating the importance of due process, Whoopi highlighted the 2006 Duke lacrosse case, where three Duke lacrosse team members were falsely accused of rape.

In response, I say, “Whoopi, you are right.” Legally, every defendant is presumed to be innocent unless proven guilty in a court of law. That includes Bill Cosby. The question is whether every person who is “legally innocent” is actually/factually innocent. The answer is “no.” There are numerous reasons why someone who committed an offense may never be brought to criminal court and/or convicted. One reason is that the evidence is insufficient, in spite of the person’s guilt. As we have all learned from many high profile cases resulting in acquittals, the Criminal Justice System is less about truth and more about what can be proven. “Proof beyond and to the exclusion of every reasonable doubt” is a very high burden for prosecutors to reach. As a result, many cases aren’t brought by prosecutors due to proof problems and not because of a person’s innocence. Additionally, some cases aren’t brought in the criminal arena because of problems with the Statue of Limitations. That’s the only reason why Cosby hasn’t been yet stripped of his liberty, in spite of approximately 40 separate accusers and his admission in sworn testimony from his 2005 civil suit. Prosecutors believe he is guilty and most folks who are being intellectually honest also believe he isn’t Snow White innocent.

Regarding her opinion about Cosby, Whoopi has also stated, “So, don’t come after me like that, ’cause I’m sick of this bull.” She added: “Here’s the bottom line, for me: It’s my opinion. And the American courts agree with me, because still he has not been taken to jail or trial on anything. So, back off me!” To those remarks, I say, “Well Whoopi, you are right, in part.” People should back off if they are personally attacking you or threatening to do violence to you. What makes this country great is that everyone is entitled to their opinion. As a free society, we should encourage a free flow of ideas and agree to respectfully disagree with those whose opinions differ from ours. However, what I do disagree with is the portion of her remarks which seem to erroneously suggest that Cosby is actually innocent because he was never taken to jail or placed on trial. That hasn’t happened solely because of the Statute of Limitations.

INTRODUCTION

It has just been revealed that all six of the criminally charged Baltimore police officers, who were involved in the arrest of now deceased Freddie Gray, provided statements to law enforcement investigators. At the time of this posting, the contents of each of the officers’ statements is unknown. It’s possible that everything that flowed from each of the officers’ lips assists their defense. On the other hand, what is also possible is that some of the statements made by some or all of the officers will be words that prosecutors will seek to introduce against them at trial. The question that many are asking is, “Can the officers’ statements be used against them?”

ANALYSIS

This one really gets me. Two parents from Florida were arrested for felony child neglect. What did they do? Starve their child? Deprive their child of needed medical care? Leave the child abandoned on the streets for days with no food, clothing or shelter? No, nothing like that. The two parents were stuck in traffic so their 11-year-old son arrived home from school before they did. He went into the back yard of their home and began to play basketball alone. Seeing the boy shooting hoops by himself, a neighbor called the cops.

When the parents arrived home, the police began their interrogation. Claiming the child had no water or shelter, the police arrested both parents. As a result, the 11-year-old boy was removed from their home. Furthermore, child protective workers removed from their home their other son, a four-year-old. The two boys languished in and out of foster care for over a month before they were finally reunited with their parents. The criminal charges are still pending at this time.

OK, first, shame on you neighbor! You called the cops? Look what your choice caused. If you think the kid needed food, water or shelter, offer it to him. Calling the cops is the last resort!

Two of the six officers charged in Baltimore, Officers Edward M. Nero and Garrett E. Miller, are alleged to have committed the crime of false imprisonment against Freddie Gray. The prosecutor’s theory is that Gray’s arrest was unlawful because the knife that police seized from Gray’s pants pocket is allegedly legal under Maryland law. In charging documents, prosecutors allege, “The knife was not a switchblade knife.” Rather, the knife was allegedly one that folded into the handle, and thus, perfectly legal to possess.

The defendants argue that, contrary to what prosecutors maintain, there is no false arrest here because the knife was illegal to conceal. Nero’s attorney has requested to inspect the weapon. He wants to show that while not a switchblade, the pocket knife does have spring action, which would make it unlawful under Baltimore law. If that’s correct, then there is no case here and the only one who arguably committed a false arrest would be prosecutor Marilyn Mosby.

I don’t believe this case should hinge on whether the knife was lawful or not. The issue for me was whether the officers intended to falsely arrest Freddie Gray. In other words, if prosecutors can show that the officers knew the knife was lawful and that Gray had committed no crime, yet chose to arrest him anyway, then there may be merit to the prosecutor’s case. However, that’s not what was alleged by the prosecutor at the press conference when the charges were first announced. I have no reason to believe the prosecutor chose not to reveal her best evidence when addressing the metaphorically mostly blood thirsty, pitchfork carrying crowd.

Imagine that the police allege that you committed an extremely “high profile” violent act against someone. The victim’s attorney and the public are demanding that you are immediately stripped of your liberty and charged with the crime. Because you believe that you are innocent, you don’t want the charges filed by the prosecutor evaluating the case. You are praying that the screening process is fair. Immediately after the prosecutor’s alleged “thorough and independent investigation,” she decides to file charges against you. While questioning the fairness of the process, you then learn that the victim’s attorney donated thousands of dollars to the prosecutor’s campaign. He even served on her transition committee. Additionally, it comes to light that your prosecutor is married to a high profile councilman who represents the people from the jurisdiction where the crime allegedly occurred and from where the victim resides. Does this process seem fair? Does the prosecutor give off the image of impropriety?

The facts presented in the hypothetical above mirror those present in the high profile Baltimore criminal case involving six police officers, each charged with offenses relating to their alleged mistreatment of Freddie Gray. The prosecutor Marilyn Mosby, who made the decision to file serious criminal charges against the officers, did accept $5,000 in campaign donations from the victim’s family attorney William Murphy. He also worked with her on her transition committee. Her husband, Nick Mosby is a city councilman who represents the people from the jurisdiction where the crimes allegedly occurred. Additionally, the victim was one of his constituents.

Anyone who doesn’t think that, at a minimum, there’s the image of impropriety is either naive or being intellectually dishonest. If you, or someone you love were faced with similar facts, you’d be passionately crying foul. If the same allegations were made about a judge presiding over these defendants’ criminal case, the judge would most certainly have to recuse him/herself. I’m not suggesting that the charges weren’t warranted. They may have been, however, see some of my concerns: https://www.floridacriminaldefenselawyerblog.com/2015/05/baltimore-criminal-case-not-a-slam-dunk.html I’m also not suggesting that Mrs. Mosby can’t be fair. What I’m simply pointing out is that if there was another prosecutor who was more “independent” and free from the above described relationships, the process would have to be perceived as more fair. I still don’t see the down side in bringing in an independent prosecutor to review Mrs. Mosby’s charging decisions.

INTRODUCTION

I couldn’t believe it when I heard it. I was channel surfing and stopped on one of the major news channels. A well respected analyst passionately stated that the criminal case against the six Baltimore police officers was a ‘slam dunk.’ I immediately shook my head in disbelief. I know one thing is certain about this case. It’s not a slam dunk and convictions for all the officers is not a certainty. I join many of my colleagues in questioning whether the charges brought can be legally proven. Because all of the facts have not been released, I’m not suggesting that the charges aren’t warranted. I’m simply suggesting that based upon what has been released to date, there’s good reason to question whether the charges can be proven beyond and to the exclusion of every reasonable doubt.

LEGAL ANALYSIS

THE ALLEGED FACTS

Some new interesting developments have come to light concerning one of the jurors (Juror #17) in the most recent Jodi Arias jury trial. It’s being reported by CBS 5, a local television station from Phoenix, that the lone juror who held out for a life sentence, forcing a mistrial, sparing Arias from the death penalty, has an unusual link to Juan Martinez, Jodi Arias’ prosecutor. Apparently, Juror #17 used to be married to a guy who Martinez prosecuted in the late 1990s for murder. For some unknown reason, the charge was dismissed. Additionally, that same ex-husband was prosecuted for Burglary in May of 2000 and was sentenced to four months in jail. It’s alleged that while those criminal cases were pending, Juror #17 and the man being prosecuted by Martinez got married and had two children together.

WHAT DOES THIS MEAN?