INTRODUCTION
The discussion began almost immediately after the abhorrent Orlando shooting took place. Should the shooter’s wife face criminal charges? Even before details were released concerning her alleged involvement, numerous members of the “Court of Public Opinion” were passionately crying out for her arrest, believing that she had to have known of his evil plot and/or must have participated in some way. So why hasn’t she been arrested up to this point?
ANALYSIS
Cops demonstrate their inherent bias through the charges they choose to level. Let’s talk about Sheila and George. Sheila was the trusted bookkeeper for a very successful company. Unfortunately, she wasn’t as trustworthy as the company thought. Over a period of two years Sheila diverted $350 a week of company receipts to her own bank account. George, on the other hand, was a successful black businessman who traveled abroad a lot. On one trip to China he came back through customs with a box full of DVDs. He had the receipt to show that he had paid for them, but customs declared them counterfeit and arrested George.
Sheila could have been charged with approximately one hundred separate counts of grand theft (the amount of each theft over the two-year period was in excess of $300) and could have faced up to five hundred years in prison. Fortunately for her, she was charged with one count of organized scheme to defraud. That’s a first-degree felony punishable by up to 30 years in prison and, in fact, she got off with just probation. Because she was only initially charged with just one criminal offense, her bond was very reasonable. George, on the other hand, could have been charged with just one count of dealing in stolen property. If convicted, he would have faced a maximum penalty of 15 years. Instead, for reasons I still don’t understand, law enforcement threw the book at George, charging him with a separate felony count for each of the several hundred DVD’s in his possession, subjecting him to a possible life sentence. His bond was actually over a million dollars before it was eventually reduced. He escaped the worst, but still went through hell and paid a huge price, both psychologically and financially, before the charges were dropped.
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This ruling is epic! The United States Supreme Court ruled this week that Florida’s death penalty law is unconstitutional. The highest court in the land found, amongst other things, that Florida courts were violating defendants’ Sixth Amendment rights by ordering death in the manner in which they were.
What the court had a problem with was the fact that judges, not juries, were the ones making the ultimate decisions in capital cases. While jurors deliberated and made a recommendation to the judge, the judge would decide on his/her own whether the person should live or die. The Court found that a jury’s mere recommendation is not enough.
The ruling was good news for Timonthy Lee Hurst, who was convicted of stabbing his co-worker in 1998. His case will now be remanded back to the lower courts to decide what his penalty should be. It will now be exclusively up to the jury to decide his fate.
No. There you have it. All my clients aren’t innocent. No beating around the bush from me. I won’t give you that frequently offered smug line, “All of my clients are innocent…until proven guilty.”(Even though they are legally innocent) As a criminal defense attorney, I do represent numerous “guilty” clients. “How can you defend those guilty people?”, many have asked. The answer is, “It’s actually easier to defend someone who is guilty.”
To understand what I’m saying, imagine someone you care about was accused of a crime that she/he did not commit. Imagine feeling powerless over the police, prosecutor and judge. You want so desperately to make the charges go away, however, you can’t. Sleepless nights, stress, and anger all accompany this living nightmare. Who do you turn to? Me. While I can’t guarantee any particular result, I take on representation of your innocent loved one with the promise that, “I will do all that I can do obtain the best possible outcome under extremely challenging circumstances.” In spite of indicating that you understand that I cannot pull a “David Copperfield” and make the charges disappear, you don’t really want the “best possible outcome.” In your mind, anything short of the charges being dropped would be a miscarriage of justice. Well, that energy and pressure falls on me. While I’m always up for the challenge, I nevertheless am constantly feeling the daily pressure to keep doing the next right thing in order to obtain justice for my clients. One of the many initial challenges that I face in dealing with innocent clients is that most prosecutors and judges don’t believe that my client is innocent. You ask, “But what about the presumption of innocence?” Ha! That only exists in cheesy television law dramas. In reality, most prosecutors and judges believe that if a person was arrested, they must be guilty. Similarly, most potential jurors typically share the same philosophy. I prove that every time I’m picking a jury at trial. Invariably, I ask the following questions: “Have you ever driven by the scene of a crime and seen someone who had been handcuffed by police?” (After most jurors respond, “Yes”) I next ask, “Let me guess, your thought at the time was, “Why are they arresting that sweet innocent person?” Many jurors laugh at loud after hearing me say that. I then say, “That’s not how you feel. Rather, you think, What did that guilty person do?” I then challenge them with the following, “Knowing that my client was one of those persons who once wore handcuffs and was brought to jail, just like those arrested persons you’ve seen in the past at the scene of a crime, how can you believe that he is innocent? (As the law requires) I study the looks on their faces. The ones who give me a, “You make a good point” look, I move to strike. The ones who fire back with, “Well, just because their arrested and handcuffed doesn’t mean their guilty,” are the jurors who I want to hear the case.
The feeling of fighting for an innocent client and ultimately being able to get the charges dropped by prosecutors is a spectacularly rewarding experience that is almost indescribable. I feel like I’ve been a part of something wonderful. My feeling after jurors acquit my innocent clients is a bit different. Instead of feeling relief after the not guilty verdict, I am often consumed with anger. I think, “You see prosecutor? This case never should have gone to trial. You should have dropped these charges. My client shouldn’t have gone through the extraordinary financial and emotional strain of a trial. You should have done the right thing months ago when I passionately pleaded with you and shared evidence that supported innocence.”
I try not to do fear. Yes, taking on fear is a choice. I tell myself that fear is nothing more than an acronym meaning “False Evidence Appearing Real.” Still, this Ebola outbreak has me rather concerned, with good reason. It’s the largest Ebola outbreak on record. Health officials are struggling to identify how many people have had contact with Thomas Eric Duncan, the Liberian man who is now undergoing treatment for Ebola in Dallas, Texas. The thought of how many, coupled with the ripple effect, could justify the fear that so many are feeling at this moment. It is in large part due to that fear that so many are calling for vigorous prosecution of Duncan, in spite of the fact that he is currently in critical condition. Should he be prosecuted? The answer is, “Definitely…maybe.” It all depends on what reported facts are true.
Liberian officials have already made the aggressive move of announcing that they intend to prosecute Duncan. They passionately believe that during an airport screening in Liberia, he lied about having come in contact with someone who was infected with Ebola. Duncan claims that while he helped a woman to a taxi, he believed that she had a pregnancy-related illness. According to the AP, that woman later died of the Ebola virus. Duncan was able to pass a screening at the airport in Monrovia because he didn’t demonstrate any fever and/or other symptoms associate with the virus. What is not in dispute is that Duncan did get sick just several days after arriving in the U.S.
If Duncan knew that the woman that he came in contact with had Ebola and then lied about it, he should be prosecuted. If, as he alleges, he didn’t know that she had the virus, then they need to back off. Proving that he knew that her symptoms were that of Ebola and not pregnancy related as Duncan alleges, will prove to be a challenging task.
Most of us have said it and/or thought it, at some point. “Why the hell does it take so long to kill death row inmates?” In some instances, it literally takes several decades from sentencing to execution. Many have called this a miscarriage of justice. The majority of Americans want the process to speed up. For one North Carolina death row inmate, had the public gotten their wish, he would have been put to death a long time ago. Had that happened at our insistence, then today there’d be blood on all of our hands.
The longest-serving North Carolina death row inmate and his half-brother, who was serving a life sentence have been declared “innocent” by both the judge and prosecutor now handling the case. They had spent more than 30 years in prison for a rape and murder that they did not commit.
Leon Brown and Henry McCollum were just 15 and 19 at the time they were arrested for the abhorrent crimes in 1983. The victim was just 11-years-old.
Here’s another one. Another story from the criminal arena that will have you shaking your head. A 19-year-old man from Austin, Texas chose to make and sell brownies and now is facing up to life in prison. OK, so I’m leaving out a few details. He laced the baked goods with additional “ingredients” that were intended to get consumers “baked.” Because he added marijuana and hash oil to the mix, he faces a felony charge with outrageous possible sanctions. Welcome to Texas.
Texas law enforcement found at the offender’s apartment 1.5 pounds of brownies, digital scales, a pound of marijuana, approximately $1600 in cash and dozens of baggies with hash oil and marijuana. Police came to his apartment because they received complaints about “marijuana use.”
In Texas, possessing 4 grams of hash oil is enough for a first degree felony charge. Apparently, this defendant, who had never been arrested prior to this bust, had 145 grams of hash oil. Hash oil possession results in much more severe sanctions than marijuana. The THC level in hash is much higher than in marijuana. It’s actually in the same penalty group as amphetamines and ecstasy. Additionally, because the defendant used hash oil, prosecutors are permitted to add up the total weight of brownies and tag him with manufacturing and distributing 1.5 pounds of that substance.
What do you believe is the appropriate sentence for a man who murders another man in front of his children, then kidnaps and rapes his ex-girlfriend, and then shoots at a cop? Probation? Kidding. Many believe that the ultimate sanction should be imposed for those series of abhorrent offenses. Well, that’s exactly what the judge did. Russell Bucklew is currently on Missouri’s death row and was scheduled to die last night. What saved him?
Justice Samuel Alito of the U.S. Supreme Court temporary delated the execution of Bucklew literally two hours before a lethal cocktail was to be injected into his veins. The Court is reviewing his case today. He can still be put to death by 12:01 Thursday as his death warrant is still in effect. If he exhausts all his appeals by then, he will be killed by the State of Missouri.
So what did his lawyers argue to successfully get the brief stay? They alleged that a rare illness that Bucklew possesses would make a lethal injection excruciating, and thus, a violation of the Constitution. Because the State couldn’t show that Bucklew’s allegation was incorrect, they put the execution on hold. The justices wrote, “Bucklew’s unrebutted medical evidence demonstrates the requisite sufficient likelihood of unnecessary pain and suffering beyond the constitutionally permissible amount inherent in all executions.” They further wrote, “The irreparable harm to Bucklew is great in comparison to the harm to the state from staying the execution.”
Yesterday, I wrote about Superior Court Judge Jan Jurden, who made a decision that has resulted in her receiving a number of death threats. See: https://www.floridacriminaldefenselawyerblog.com/2014/04/jail-child-rapist.html Many are demanding her removal from the bench. As I shared with you in the article, the judge sentenced a man who raped his three year old daughter to probation instead of prison. The offender was a du Pont family heir.
The outrage stemmed primarily from what the judge wrote in her sentencing order: “He would not fare well in prison.” She used that as a mitigator in doling out the very light sentence. Nowhere in her order did she attempt to justify her sentence by alleging that the prosecution’s evidence was weak in any way. That fact, in my opinion, would have served as the only possible reason to justify probation in this horrific case. So, naturally, in yesterday’s blog post, I was very critical of this judge’s judgment. Additionally, based upon the facts that were available to me when I wrote the article, I put the blame solely on the judge.
Many attorneys, both prosecutors and defense lawyers, are coming to the judge’s defense. Based upon the facts that just came to my attention, I am now jumping on that band wagon, to some extent.
If you heard many of the initial reports about the recent Miami Beach arrest of Justin Bieber, you would have thought that the case against him was a slam dunk for the prosecution. Well, it’s not. However, it’s also not is a slam dunk for the defense, as many are starting to report. My assessment, based upon the available reports of the facts and circumstances of the night in question is that Bieber may still be convicted of DUI.
First, it’s important to clear up a number of the erroneously reported facts. Many media outlets initially reported that he was charged with drag racing. While Officer Media did write in the arrest form that Officer Cosner observed two Lamborginis drag racing, with one being driven by Bieber, he wasn’t actually charged with that criminal act. Additionally, many stations reported that Bieber’s blood alcohol content at the time of driving was a .04. If accurate, that would mean that Bieber was double the legal limit for someone under twenty-one years of age, which in Florida is a mere .02. (For those over twenty-one, the legal limit is .08) In reality, we learned at some point after the drama of his arrest, that he only blew a .014 into the Intoxilyzer 8000 breath machine. That would be consistent with one drink, certainly not sufficient to prove that he was impaired due to alcohol consumption.
So with a mere .014 reading, many are asking, “Then how the heck can he be convicted of DUI?” Here’s the analysis. First, it’s important to understand what happened immediately after he provided the low breath sample. The cops involved determined that the level of impairment they observed with Bieber was inconsistent with his low reading. In other words, they believed that Bieber must have been impaired due to something else other than alcohol. Naturally, they suspected drugs. What bolstered their suspicion was that Bieber allegedly admitted at the arrest scene that he had been recently smoking marijuana and also, was taking medication, albeit prescribed. Furthermore, his demeanor and actions both at the scene and the station house served to support their theory. As a result, they did what they always do in a DUI investigation after either a .000 breath reading and/or a low reading, they asked for a urine sample. Allegedly, Bieber provided one. This case hinges, in large part, based upon what toxicologists find in his urine. If marijuana and/or any other controlled substance is found, prosecutors may be able to successfully prosecute him on the theory that he was impaired due to a controlled substance.
Florida Criminal Defense Lawyer Blog