Articles Posted in Breaking News

INITIAL THOUGHTS

I know a lot of people are angry right now. To hear that Jodi Arias won’t be going to death row because of one lone juror (Juror #17) is too much for many to handle. Many on social media have suggested that, “There is no justice,” and numerous folks are even calling for the entire criminal justice system to be revamped. Some have even called for the judge to be prosecuted. The madness must stop. For those who want to stay angry and frustrated at the system, then stop reading now. This article is solely for those who are willing to set aside emotion for a moment and are open to another point of view. More popular would be for me to keep these thoughts to myself. I cannot.

First, let me make clear that how I feel about the verdict is irrelevant to what I have to say in this article. I may believe passionately that Jodi should be on death row. I also may believe that life without parole is an appropriate sentence. What I am about to share has nothing to do with what I believe should happen to Jodi Arias.

As a former burglary victim and father of three young children, I especially feel for Ray Allen and his family. I thoroughly understand why they’re demanding the arrest and maximum charge for all intruders who brazenly entered their home while they slept. What an extraordinary violation!

As a result of the media attention on this case, both the Coral Gables Police Department and the Miami-Dade State Attorneys Office have come under criticism for announcing that the most serious offense for which they could be charged is misdemeanor trespass. Some, including a few of my colleagues in the criminal arena, have erroneously suggested that there’s sufficient evidence to charge the intruders with burglary (a felony). They are mistaken and/or misinformed. Unless there’s proof beyond a reasonable doubt that the offenders intended to commit a crime like theft and/or vandalism while unlawfully in the home, the appropriate charge must be trespass. The law specifically requires proof to be more than mere speculation. Absent additional evidence, prosecutors and law enforcement officers’ hands are tied. A judge who was following the law would be required to dismiss burglary charges in this case, absent additional evidence.

So what’s the harm with overcharging them? One could make the argument that their conduct warrants the most serious charge possible. Why not just charge them with the burglary, as some of my colleagues have suggested, and then plea bargain the case down? The reason why that should never be done is because it would be unlawful. Additionally, the minute we allow law enforcement and/or prosecutors to overcharge suspects absent sufficient evidence is the beginning of the end for the criminal system. While it might be ok with you in this instance, imagine if it was done to you and/or someone you cared about under different circumstances. How would you feel if your careless driving (a mere traffic infraction that you could pay) turned into a reckless driving (a criminal offense, punishable by up to 90 days in jail) merely because the officer was upset with your attitude and/or didn’t know any better?

My parents would be deemed career criminals by today’s standards. That’s not to suggest that I believe that they ever committed any criminal acts. It’s just that the things they did with me and my siblings back in the 1970’s and 1980’s now society calls “child neglect” and/or “child abuse.” I’m referring to the numerous liberties that they took in allowing us to walk to the park by ourselves at a very young age. I’m also referring to the times that we took the public bus without parental supervision and/or wandered the malls alone. This was pre Adam Walsh time here in South Florida, so that type of behavior was engaged in by many loving parents, like mine. Today, those same parental choices would most likely lead to their incarceration.

A Florida mom, just this past week, was stripped of her liberty and charged with felony child neglect after she allowed her 7-year-old son Dominic to walk to the park alone. Mother Nicole Gainey made sure her son had a cell phone for the 10-15 minute stroll. While Dominic was on his solo journey, concerned strangers approached and peppered him with questions like, “Where’s your mother?” Dominic ran off, frightened by the strangers’ inquest. The strangers called the police who approached Dominic at the park and asked him where his mommy lives. That led to the mother’s felony arrest. Officers wrote in their police report that, “Numerous sex offenders reside in the vicinity.” Dominic’s mother is still shocked by the entire situation, believing that he had the maturity to handle the half mile walk by himself.

This isn’t the first time a parent has been arrested recently for allowing a youngster to walk somewhere alone. A couple of months ago, Debra Harrell was arrested and charged with “unlawful conduct toward a child” after letting her 9-year-old daughter play at the park unsupervised while she worked her shift at McDonald’s. Additionally, Child Protective Services were called to investigate an Ohio father who allowed his 6-year-old daughter to walk a few blocks to the post office by herself.

Bob Smith reasonably fears for his life.  A man yielding a knife, who is significantly larger than Bob, makes Bob believe that at any moment, he could be stabbed and killed.  Bob chooses not to run for it.  He pulls out a gun from his waistband and blows the perpetrator away.  Seems like a clear case of justifiable use of force. This is Florida, after all.  Bob chose to stand his ground.  There’s just one problem.  Bob is a convicted felon and isn’t allowed to legally possess a firearm.  Does he still have the right to obtain immunity under Florida’s “Stand Your Ground” (SYG) law?

Former Florida State Senator Durell Peaden, who sponsored the original Stand Your Ground legislation in 2005, argues that if, as a convicted felon, one lost one’s right to bear arms, then one shouldn’t have the same protections that “law-abiding citizens should have.”  Many here in Florida agree with Peaden. The Florida Supreme Court will soon address this previously unresolved issue.  They’re reviewing a case that stems from Palm Beach County.  In that case, Brian Bragdon, a 25-year-old convicted cocaine dealer, shot two men outside a strip club.  Bragdon argues that he was defending himself.  Prosecutors, however, maintain that he doesn’t have the right to argue Stand Your Ground against the attempted murder charges because he’s a convicted felon, and, thus, should not have been in possession of a gun.  Two Florida appellate courts have ruled differently on this same issue.  It will take the highest court in Florida to resolve this.

Under the Stand Your Ground statute in Florida, a person is not legally required to retreat from someone and may use deadly force if they reasonably fear death or great bodily harm.  Prosecutors point to a portion of the law that eliminates the right of a person to argue SYG if that person was “engaged in an unlawful activity.”  The purpose for that language was, for example, to prevent a burglar from arguing Stand Your Ground after shooting someone while burglarizing their home.  Prosecutors want to use that language in the statute to argue that felons using guns shouldn’t be able to argue SYG as a defense because it’s unlawful for felons to carry gun, and thus, they, like a murdering burglar, were engaged in “unlawful activity.”

In my most recent post, I described the miscarriage of justice in the case of New York vs. Jonathan Fleming. Fleming, a 51- year-old convicted murderer, was in the process of serving his 25th year of a 25 years to life sentence when he was recently released.  Turns out, he was innocent, just as he passionately alleged during his trial 25  years ago.

Cases like his make me think about all those other wrongfully convicted defendants.  Additionally, I ponder about those who are on death row, facing the ultimate sanction for crimes they did not commit.  While a single defendant falsely convicted is too many, I wish we knew an exact number.

A newly released study has created quite a stir, not only amongst those in the anti-death penalty community.  According to the study, more than four percent of inmates who are sentenced to death in the U.S. are probably innocent.  The researchers are calling their estimate a “conservative” one, noting that the number of capital defendants who were exonerated over the past thirty years is actually double (8%).  Researchers claim that the purpose of their study was to account for those innocent defendants who, unlike Jonathan Fleming, are never exonerated. 

If you’re one of the many who wonders, “How can you defend those guilty people?” then this article is for you.  Once again, another prisoner has been released after newly discovered evidence proves that he was innocent.  The latest defendant is Jonathan Fleming.  Fleming, who is 51- years-old, was in the process of serving his 25th year of a 25 years to life sentence when he was recently released.

In 1989, Fleming was convicted of Second Degree Murder after allegedly shooting, Darryl Alston, a rival drug dealer, on Aug. 15, 1989.  The shooting occurred in Brooklyn, New York.  His defense was very simple.  He unsuccessfully argued at his trial that he was at Disney World in Orlando with his family at the time of the shooting.  His attorneys presented evidence at trial that included plane tickets, video footage and vacation photos.  Prosecutors argued that Fleming could have returned to Brooklyn and shot the victim.  They even entered into evidence a list of 53 possible flights that he could have taken, casting some doubt on the testimony and evidence provided by Fleming’s family members.

The most compelling evidence prosecutors introduced during Fleming’s trial was testimony from eyewitness Jacqueline Belardo, who positively identified Fleming as the shooter.  That same “star witness” later recanted her testimony prior to sentencing, claiming that she identified Fleming solely to receive a dismissal of her grand larceny charges.  Prosecutors alleged that Ms. Belardo was lying.

Minutes ago, 42 year old Michel Escoto was convicted of murdering his wife.  It took twelve years from the vicious beating to today’s first degree murder conviction.  Jurors took just 2 1/2 hours to convict Escoto, who committed the murder to collect on a $1 million life insurance policy.  The trial took a month and was anything but typical.

As has been repeatedly reported, this defendant believed it was in his best interest to act as his own attorney.  The Constitution does give him the right to have a fool for a client.  The question is, “Was this a smart move?”

The obvious answer is, “Hell no!  Look at the outcome.”  Even ignoring the guilty verdict for one moment, it still was dooms day from the start for this convicted murderer.  I must concede that it was theoretically possible that this guy, who never attended law school and had never handled a traffic ticket for himself or anyone else, could have pulled off an acquittal.  I’ll grant him that generic possibility.  In reality, however, his chances of winning, from the start, were always so low, so remote, approaching almost no real value.